State Antiquities Code Protection

If a historic cemetery is publicly owned by a state agency or political subdivision of the state (counties, cities, utility districts, etc.), the burials are protected as archeological sites under the Antiquities Code of Texas (Title 9, Chapter 191 of the Texas Natural Resources Code). The gravemarkers associated with interments may also be protected, either as part of the archeological deposits or as separate architectural features associated with the site as a whole. According to the Antiquities Code, no such deposits may be “removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit” from the Texas Historical Commission (THC), the state agency that administers the Antiquities Code (Section 191.093).

State agencies and political subdivisions of the state must notify the commission before a publicly owned cemetery that is 50 years old or older can be altered beyond ongoing maintenance and daily cemetery activities. The THC has developed a policy that addresses both historical and archeological concerns related to the preservation and exhumation of historic graves.

The THC policy regarding historic cemeteries calls for recordation, protection, and preservation in place whenever possible. Survey-level investigations of these historic resources should include the collection of historical archival data and archeological data that assist in documenting the location and history of the cemetery (including the relative age and date range for the use of the location), name(s) of individual(s) buried at the site, location(s) of burial(s), and the historically platted boundaries and the actual boundaries of the cemetery or grave(s).

Policy on Historic Grave Exhumation

When a cemetery cannot be preserved in place, the data collection associated with the exhumation of graves that falls under the THC’s jurisdiction will be based on the following policy, found in Title 13 of the Texas Administrative Code, Chapter 22:

  • Cemeteries or graves that are 50 years or older are considered to be historic under the Antiquities Code of Texas.
  • Unmarked graves are considered to be historic unless proven otherwise through historical research.
  • If no historical archival data can be found that identifies the individuals contained within the unmarked graves, the exhumations should be performed by a professional archeologist, a physical anthropologist, or forensic pathologist capable of gathering basic demographic data (i.e., sex, age, height, possible cause of death, etc.) from the human remains being exhumed. Additionally, casket morphology, casket hardware, and any funerary objects (i.e., grave offerings, clothing items, personal objects) must be examined and identified in a report. This policy applies to both marked and unmarked graves unless otherwise indicated by the THC’s Archeology Division.
  • Unless other laws apply, all physical anthropological investigations of human remains that fall under the THC’s jurisdiction will use noninvasive techniques. If invasive techniques are proposed, the wishes of living descendants shall be solicited and their wishes shall be honored.
  • Unless other laws apply, funerary objects will be reburied with the human remains after they have been documented.
  • All exhumations of graves shall comply with the requirements of Chapter 711 of the Texas Health and Safety Code and those of any other laws that pertain to the exhumation of human remains.
  • The THC has no formal role in decisions about the methods or ceremonies associated with reburials.

Cemeteries on public or private land can also be officially designated as State Archeological Landmarks. For designation information, contact the THC at P.O. Box 12276, Austin, TX 78711, or 512-463-6096.

Federal Project Review

Several federal laws protect cultural resources in the United States; however, the National Historic Preservation Act of 1966, as amended, is the statutory tool for protecting cultural resources. The act promotes a national policy to preserve historic properties, significant historic and prehistoric sites, buildings, and objects that are either eligible for or listed in the National Register of Historic Places.

Section 106 of the National Historic Preservation Act requires federal agencies that fund, license, permit, or approve construction or similar projects to consider the effects of the undertakings on historic properties. Section 101(b)(3) of the act states that one of the responsibilities of the State Historic Preservation Officer (in Texas, the officer is the executive director of the THC) is to advise and assist federal agencies in carrying out their historic preservation responsibilities and to ensure that all are taken into consideration at each level of planning and development. Cemeteries are an irreplaceable cultural resource that must be considered by federal agencies during such an undertaking.

The State Historic Preservation Office (SHPO) at the THC includes four divisions that review and monitor federal projects and consult with individuals and agencies as needed—the Archeology Division, Architecture Division, Community Heritage Development Division, and History Programs Division. They evaluate all sites, including cemeteries, for their eligibility for inclusion in the National Register of Historic Places.

The National Historic Preservation Act can affect cemeteries if they are within the boundaries of a federal project area, if they have been determined to be eligible for inclusion in the National Register, and if they are to be affected by the development project in some manner. Sometimes cemeteries in a project area must be moved. The move is made according to policies developed by the federal agency in consultation with the SHPO and any interested parties. Disinterment and reburial must also follow the requirements of Chapter 711 of the Texas Health and Safety Code, unless the project occurs on federal or American Indian lands, in which case, the Native American Graves Protection and Repatriation Act (NAGPRA) applies. Visit the following links to learn more about NAGPRA and tribal consultation:

National NAGRA

Consultation with Native Americans A Historic Preservation Responsibility (PDF)

Tribal Consultation Guidelines

Professional archeologists usually make a map of the cemetery and document the gravemarkers and any other features (depressions, fencing, and plantings) associated with the cemetery. Archeologists and physical anthropologists may be present to identify and study human remains and grave artifacts during manual excavation of the interment. Often, information is recorded from the gravemarkers to provide historical documentation, such as the length of occupancy of a land tract or ethnic affiliations in the community. This documentation can assist archeologists and historians in interpreting other historic properties within a federal project area.

For questions involving possible federal involvement in projects that will affect historic cemeteries, contact the THC’s History Programs Division at 512-463-5853 and the Archeology Division at 512-463-6096.