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Shirley Schermer on Cemeteries




Date: Mon, 13 Aug 2001 15:44:00 -0400


Subject: Old cemetery at Rhodes, Marshall Co., IA


Ms. Schermer,


            I am working very hard to get the Marshall County

Supervirors and/or the Eden Township Trustees to take

action to preserve and protect the Price Cemetery in Sec 4

 Twp 82, N Range 20, 1-1/2 miles north of Rhodes, IA.


            The earliest burial there that we have been able to

confirm occurred in 1861, making the cemetery 140 years

old.  I understant that when it is 150 years old it will come

under special protection from Iowa law.


            Unfortunately if I can't get some immediate action

the cemetery will be completely destroyed before it

reaches that protection.  The owner of the surrounding

land has pulled down the fences and allowed his cattle

to "clean up" the cemetery.  This has resulted in nearly

total destruction of most of the headstones.


            Can you offer any suggestions that might help

me get some action here?


            What laws will apply when/if the cemetery

becomes 150 years old?


            I have arranged for the local newspaper to do

an article about the cemetery and I have been gathering

signatures on a petition asking the supervisors and

trustees to take action.    The trustees insist it is not

their problem.


            Any help or suggestions will be appreciated.


Gerald L. Hale


(I was raised in Rhodes and my ancestor, Justus

Richmond, Jr. is one of the people buried there.)


I am presently visiting in Iowa and can be reached

in Melbourne, IA  Tel: 641 / 482-3242

Date: Mon, 20 Aug 2001 15:33:01 -0500


Subject: Re: Old cemetery at Rhodes, Marshall Co., IA


I gave a copy of your request to Pat Shaw. She heads the Iowa Cemetery

Association and has been very active in trying to protect historic

cemeteries. It sounded like she would try to get in touch with you. If not,

her e-mail is:


Some changes in current Iowa law may be proposed for the next legislative

session. I am attaching a Word document file that contains a brief summary

of current laws protecting burials of both more than and less than 150 years.





(Thank you Shirley Schermer - see contact information on another page. /H/)


A Brief Overview of Sections of the Code of Iowa Concerning Burial Sites

Chapter 144—Vital Statistics

144.34 Disinterment—permit: details conditions under which disinterment of burials less than 150 years in age can occur (issued by state registrar, Vital Statistics, Department of Public Health)

Chapter 263B—State Archaeologist [Administrative Rules 685–11.1]

263B.7 Ancient remains: gives the state archaeologist the primary responsibility for investigating, preserving, and reinterring discoveries of ancient human remains. “Ancient” is defined as more than 150 years old.

263B.8 Cemetery for ancient remains: provides for establishment of cemetery on state land for the reburial of ancient human remains.

263B.9 Authority to deny permission to disinter human remains: gives state archaeologist authority to deny permission for disinterment

Chapter 303—Department of Cultural Affairs

303.2(2)(a): specifies that a state agency which owns, manages, or administers a historic site must enter into an agreement with the Department of Cultural Affairs to insure proper management, maintenance, and development [Board of Regents exempt]

Chapter 314—Administrative Provisions for Highways

314.24 Natural and Historic Preservation: to the extent practicable, road planning, construction, and maintenance needs to preserve and protect the natural and historic heritage of the state

Chapter 331—County Home Rule Implementation

331.325 Control and maintenance of pioneer cemeteries: “pioneer cemetery” is defined as a cemetery where six or fewer burials have taken place in the past 50 years; gives county board of supervisors authority to assume jurisdiction and control (including maintenance and repair) of pioneer cemeteries, or create a cemetery commission to do this

331.424B Cemetery levy: gives county board of supervisors authority to levy tax to pay for maintenance and repair of pioneer cemeteries

Chapter 359—Township and Township Offices

359.37 Regulation

359.39 Ex officio police officers

359.40 Cemeteries–plats, records

359.41 Conveyance of lots

Chapter 359A—Fences

Chapter 428A—Real Estate Transfer Tax

Chapter 476—Public Utility Regulation

Chapter 523I—Cemeteries

Perpetual care cemeteries require permits from the Insurance Commissioner under this chapter. This chapter also contains elaborate provisions for the liquidation of cemeteries under certain conditions.

Chapter 558—Conveyances

558.69 Reporting of private burial sites, wells, disposal sites, underground storage tanks, and hazardous waste: requires owner disclose this information with declaration of value submitted to county recorder under chapter 428A; if declaration of value not required, this information shall be submitted on separate form (“private burial sites” added to this section in 1999


Chapter 566—Cemetery Management

566.1 Trustee appointed—trust funds: The owners of, or any party interested in, any cemetery may, by petition presented to the district court of the county where the cemetery is situated, have a trustee appointed with authority to receive any and all moneys or property that may be donated for and on account of said cemetery and to invest, manage, and control same under the direction of the court; but the trustee shall not be authorized to receive any gift, except with the understanding that the principal sum is to be a permanent fund, and only the net proceeds therefrom to be used in carrying out the purpose of the trust created, and all such funds shall be exempt from taxation.

566.20-.21 Abandoned lots: one can presume from the wording of these sections that a lot can be considered abandoned only if no one is buried in it or if it is not “occupied”

566.31 Burial sites: If a governmental subdivision or agency is notified of the existence of a marked burial site within its jurisdiction, and the burial site is not otherwise provided for under this chapter or chapter 263B or 566A, it shall as soon as practicable notify the owner of the land upon which the burial site is located of the site’s existence and location. The notification shall include an explanation of the provisions contained within section 566.32.

566.32 Disturbance of burial sites—penalty: A person who knowingly and without authorization removes, destroys, or otherwise disturbs a burial site for which the person received notification under section 566.31 commits a simple misdemeanor.

566.33 Protection and preservation of burial sites: A governmental subdivision or agency having a burial site within its jurisdiction, for which protection or preservation is not otherwise provided, shall preserve and protect the burial site as necessary to restore or maintain its physical integrity as a burial site. The governmental subdivision or agency may enter into an agreement with a public or private organization interested in historical preservation to delegate to the organization the responsibility for the protection and preservation of the burial site.

566.34 Confiscation and return of memorials: authorizes law enforcement officials to confiscate and return memorials taken without permission

566.35 Burial sites located on private property: provides access to descendants to burial sites located on private property (new section passed in 1999)

Chapter 566A—Cemetery Regulation

This chapter imposes additional regulation on cemeteries owned by entities other than counties. Townships and other political subdivisions are subject to the chapter’s requirements relating to perpetual care and to the required contents for the sale of interment rights, but are not subject to the chapter’s requirements for annual reporting if not a perpetual care cemetery. Violation of a provision of this chapter is a simple misdemeanor.

Chapter 716—Damage and Trespass to Property

716.5 Criminal mischief in the third degree: makes it an aggravated misdemeanor to intentionally disturb human remains no matter what the age, whether on public or private land

716.8: penalties for trespassing, ranging from a simple misdemeanor to an aggravated misdemeanor

Chapter 729A—Infringement of Individual Rights–Hate Crimes

Chapter 903—Misdemeanors

903.1 Maximum sentence for misdemeanants: maximum penalty for an aggravated misdemeanor (or criminal mischief in the third degree) is imprisonment not to exceed two years; also there is a fine of at least $500 but not to exceed $5000; for a simple misdemeanor, the penalty is either imprisonment not to exceed thirty days, or a fine of at least fifty dollars but not to exceed one hundred dollars. A criminal penalty surcharge required by section 911.2 shall be added to any fine imposed on a misdemeanant.

Chapter 910—Restitution

Chapter 911—Surcharge Added to Criminal Penalties