Monday, Jan. 24, I attended the House Natural Resources Committee hearing
on the bill to testify about sections of the law and bill that need
clarification, if we are to have a good means of protecting both cemeteries
and burial grounds. HB 1184 was the last of 7 bills covered by the
Committee which had pizza for dinner while meeting because the hearing did
not start at 3:30 as planned, but 6:30.
Rick Jones, State Archaeologist at DNR's Division of Historic Preservation &
Archaeology, waited till 5:00 to attend and to speak if there were
questions. It sure would have been good to have him because he understands
what sections of the law are confusing. When the hearing started at 6:30 I
was the only archaeologist present, and the Farm Bureau, Farmer's Union,
Builders Association, Utilities group, etc. were out in force.
I spoke as an archaeologist, but also explained that my husband and I owned
a farm, and that I was a member of our Township Board who has grappled with
cemetery preservation at that level.
Some of you have probably read the recommendations I mailed to the
Committee, and if so the following summary report will make more sense.
On HB 1184, the sponsor presented the bill and proposed two sets of
amendments. One involved deleting several lines and commas, and needs to be
read carefully, plus it added an exemption for public utilities,
corporations, and municipally owned utilities. The 100 ft buffer was a
problem for utilities because their rights-of-way are narrow, etc.,
according to their lobbyist. The second provided "special" procedures for
development plans for governmental entities (no approval by the state if a
municipal or county project that requires a plan). The reason for this
amendment was not really discussed. Both amendments passed.
I spoke in favor of the bill but said I thought it could be improved. The
Committee members already had my letter, and time was short with people
urged to speak very briefly, so I addressed the 3 top concerns.
1. Clarity of language and no requirement to limit farm impacts.
Burial grounds, as defined by statute (IC 14-21-1-3) are NOT covered by the
law (IC 35-43) that assigns penalties for damaging cemeteries and grave
markers, and the definition of burial grounds is a bit different than that
provided for cemeteries (IC 23-14-21-3) Burial grounds are not required to
be "dedicated" for use as a burial place, as stated in the statutory
definition of cemeteries. Burial grounds would not meet the "dedicated"
provision in the definition of cemeteries if they are not devoted solely to
the use of burial or interment or entombment, but instead are also used for
such things as pastures, farm fields, gravel mine areas, residential lawns,
construction sites, etc. ) Given these definitions and provision, burial
mounds and non-mound burial grounds regardless of antiquity are not
protected from farm impacts until after human bone is disturbed and someone
recognized the disturbance and reports it to the state. The current bill,
as drafted, doesn't cover IC 35-43 or provide for any protection of
cemeteries until damage has already taken place.. The farming lobby and
others were concerned about my recommendation to add agricultural activities
to construction activities and to leave a 100 ft buffer around cemeteries,
so I said that a smaller buffer could be used for agricultural uses around
cemeteries. Also, protection from continued farm impacts like ditching and
land-leveling, could come from adding the phrase burial grounds to the IC
35-43.
2. I asked that the bill include language that would make sure property
owners were notified by the state when a cemetery or burial ground was
recorded in the survey by DHPA or its partners, so that they could help
preserve the sites and record the cemetery with the County Recorder, as the
bill requires them to do when they sell or lease their land.
3. I recommended that the bill be amended to include archaeologists and
historians at universities and colleges to be an additional entities
(along with county historical societies, Indiana Historical Society, and
Historic Landmarks Foundation, Inc,) that the state can have agreements with
to carry out surveys.
Issues 1 and 2 were discussed and the sponsor suggested that amendments
might come on second reading of the bill.
Issue 3 was set for an amendment that was approved by the Committee (I'm not
sure of the exact wording, only what I proposed).
Last but not least, the Builders Association asked that the term "known" be
inserted into the bill. Exactly where I'm not sure. However, the sense was
that the person had to "know" about the cemetery or burial ground or the
"development plan" and penalties, etc. did not apply. The amendment about
"known to be" was inserted in p. 4, line 15. But I don't have a
line-numbered copy of the bill so I'm not sure how this detracts from the
goal of preservation.
The added word "known" could pose a real problem: (1) unless the state is
required to inform landowners (e.g. by registered letter) when a cemetery is
entered into the state database (and the state won't do this job unless they
are required to do so by statute), property owners will not even be required
to protect sites from disturbances they would cause, since ; and (2)
because not all persons affecting the land are landowners, much distrubance
of places that are not known to be cemeteries can occur. E.g. a bulldozer
operator may not have been told by the property owner that a cemetery is
present in the construction area , and so the person causing the damage
would not be at fault because he didn't know, and the property owner would
not be at fault at least under the statute as drafted because he was not
the "person" disturbing "the ground within 100 feet of a recorded burial
ground or cemetery...." Any project developer that wants to get a known,
recorded cemetery out of the way can accomplish this simply by hiring
workers who don't know the cemetery.
The bill does not require property owners to tell people who might disturb a
cemetery, like a bulldozer operator for example, about a known or recorded
cemetery.
The "known" issue has implications that need to be brought to the attention
of the bill's Sponsor.
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