Could a Louisiana museum keep and display a gravestone recovered after a cemetery was disturbed?

Plain-English summary

A Louisiana museum received a grave marker displaced years earlier during highway construction, along with permission and a donation letter from the named person's descendants. The 2013 opinion concluded that curating an already displaced marker did not amount to desecration when the museum had not intentionally or criminally removed or damaged it. The AG also found no Louisiana Cemetery Act provision barring the museum's possession and display in those circumstances.

The AG treated the marker as movable property for ownership purposes. It did not decide whether the school that had stored it acquired ownership by prescription or whether descendants retained title. It said either the school's ownership and transfer, or the descendants' permission if they retained title, supported the museum's possession on the facts presented.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Museum curators

The opinion permitted curation of a marker already separated from a grave without wrongdoing by the museum. It did not approve intentional grave disturbance to obtain a marker.

Descendants and prior possessors

The AG left ownership dependent on whether the school had acquired it under movable-property prescription rules. It considered the descendants' permission relevant if they had retained ownership.

Common questions

Was displaying the recovered marker desecration?

The AG said no under the described facts, because the museum did not intentionally or criminally move or damage the marker and its curation did not disturb human remains.

Did the Cemetery Act ban museum display of a grave marker?

The opinion found no provision in the Act that barred curation of this previously displaced marker.

Did the AG decide who owned the marker?

No. It said ownership turned on facts about the school's possession and possible prescription, while noting the descendants' permission to the museum.

Background and statutory framework

The AG distinguished the desecration statute, La. RS. 14:101, and the Cemetery Act's protection of burial containers and human remains from possession of a marker already separated from its grave. It then considered Louisiana's movable-property ownership and prescription provisions, including La. C.C. Art. 3490 and La. C.C. Art. 3491.

Citations

• La. RS. 14:101: criminal desecration provision.
• La. RS. 8:653: Cemetery Act burial-container protection discussed by the AG.
• La. C.C. Art. 3490 and La. C.C. Art. 3491: possible prescription of movable-property ownership.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0120

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

~tat.e of 1UOu151ana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE

JAMES D. "BUDDY" CALDWEll
70804-9005
ATIORNEY GENERAL

AUG 1 5 2013
OPINION 13-0120
8-A-3 CEMETERIES
Hon. Gene Reynolds
State Representative, District 10
La. C.C.Arts. 481,3490, 3491
La. R.S. 8:1, et seq.; 8:651, et seq.; 8:671, et seq.; 14:101 Louisiana House of Representatives
732 Main Street
The curation and possession of a grave marker that was not
intentionally or criminally moved from a grave space does not
Minden, LA 71055
constitute desecration. In addition, such possession and curation is
not restricted by the Louisiana Cemetery Act. The law of possession and ownership of movable property applies to any such
Dear Representative Reynolds: grave markers.

You have requested an opinion from this office regarding the question of whether a public or private museum in Louisiana may hold in its collections a grave marker. In support of your opinion request, you have provided us with the following general background:

The Dorcheat Historical Association Museum [("Museum")] acquired, some time ago, a tombstone from a cemetery that was impacted in the late 1960's/early 1970's construction of Interstate 20 in North Louisiana.
This tombstone had been in storage at Minden High School since the early 1970's when the road construction disturbed the cemetery. Upon the school's decision to rid itself of the tombstone recently, and with the permission and a letter of donation from the descendants of the individual named on the tombstone, the marker became part of the Dorcheat Historical Museum's permanent exhibit and collections. The continued exhibit and curation of this tombstone is important for the understanding and teaching of the history of this region, as the cemetery itself is now partially destroyed, on isolated private property, and in a dangerous location near the current 1-20 corridor. Thus, having the tombstone in an accessible museum allows the public to safely learn about our parish history and early life in Louisiana.

It is with this basic scenario in mind that we here review the law related to the curation, possession, and permanent ownership of this grave marker. 1

1 It is important to note that we here use the term "curation" to refer to the manner in which the subject grave marker is possessed by the Dorcheat Historical Museum. Curation is a derivative of "curate," which, in this context, means, "select, organize. and look after the items in (a collection or exhibition)." th
Catherine Soanes and Angus Stevenson, CONCISE OXFORD ENGLISH DICTIONARY, 11 ed., 351 (Oxford 2006).

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OPINION 13-0120
Han. Gene Reynolds
Page 2

As an initial matter, we must address the law related to desecration and cemeteries in general in order to determine whether the Museum's acquisition of this grave marker constitutes a violation of those laws. Desecration is dealt with under Louisiana law through the Criminal Code at La. RS. 14:101. That law states:

Desecration of graves is the:

(1) Unauthorized opening of any place of interment, or building wherein the dead body of a human being is located, with the intent to remove or to mutilate the body or any part thereof, or any article interred or intended to be interred with the said body; or

(2) Intentional or criminally negligent damaging in any manner, of any . grave, tomb, or mausoleum erected for the dead.

Whoever commits the crime of desecration of graves shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.

Clearly, the curation of a grave marker does not fall under the provisions of La. RS. 14:101(1), which prohibits the mutilation of human remains. No human remains are mutilated through the curation of a grave marker. It is further our opinion that La. RS. 14:101 (2) is inapplicable to this situation. Although this provision may have applied to those who disturbed the cemetery during the 1-20 construction in the first instance ­
. assuming that the disturbance was done intentionally (of which we have no knowledge)

• it certainly cannot be said to apply to the situation in your opinion request. This
  provision of the law applies to those who would intentionally damage the grave marker. The curation of a marker can hardly be said to be damaging to the marker, especially when it has already been removed from its original location.

There is little jurisprudence in Louisiana interpreting the anti-desecration law. However, in 1913, a Louisiana court did consider, in dicta, the purpose of a predecessor to the current law. In Reichelt v. Sf. Vincent De Paul Cemetery Ass'n, the court noted that,

[t]his statute has not the slightest application to the case at bar. It is aimed exclusively at the misdeeds of vandals and ghouls and cannot, even by straining its language, be made to cover the acts of persons proceeding within their legal and contract rights. 2

We agree with this assessment of the historic as well as the current law of desecration ­ a view shared by other states' courts in recent years - and here opine that the curation of a grave marker, in the absence of the intentional or criminal removal of the marker from its place of repose atop a grave, does not constitute desecration under Louisiana

2 10 Teiss. 100, 102 (La. Ct. App. 1913).

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OPINION 13·0120
Hon. Gene Reynolds
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law. 3 In fact, as set forth below, such action by the Dorcheat Historical Museum is likely characterized as the Museum acting "within [its] legal and contract rights.,,4

On the whole, the provisions of the Louisiana Cemetery Act are also inapplicable to the current scenario. The Louisiana Cemetery Act is located at La. RS. 8:1, et seq., and it sets forth the general law related to the protection and operation of cemeteries in the State. s The only portion of this law that even remotely bears any resemblance to the scenario at hand is Chapter 10, which deals with the law related to human remains. As with La. RS. 14:101, La. RS. 8:653 prohibits certain acts that result in the disturbance of a grave. However, the focus of this law as well as the entirety of the Chapter (La. RS. 8:651, et seq.), is on protecting the integrity, and setting forth the law related to who can control the disposition, of human remains. In La. RS. 8:653, there is a prohibition against disturbing a burial container (Le., a coffin, casket, vault, or the like), but there is no prohibition against curating a grave marker. In fact, grave markers are not mentioned at all in Chapter 10. Thus, it is our opinion that there are no restrictions in the Louisiana Cemetery Act that prohibits the curation of a grave marker.

Because there are no special statutes in Louisiana that prohibit the possession or curation of a grave marker when that marker, as here, has not been obtained by intentionally damaging a grave space, we must look to the general law related to the possession and ownership of movables. 6 In Louisiana, the ownership of a thing cannot be lost by any means other than voluntary transfer or by acquisitive prescription.? From the facts available to us herein, we cannot say that the descendants of the owner of the subject grave marker ever lost ownership to the marker by way of acquisitive prescription. In this regard, we refer to the possession of the marker by Minden High School for some period of time. If the school possessed the marker with the intent to own it and otherwise met the requirements for acquisitive prescription of movables under La. C.C. Art. 3490 or La. C.C. Art. 3491, then, as with any other movable, the descendants lost their ownership and the School had every right to transfer the grave marker to the Dorcheat Historical Museum. On the other hand, if the School did not acquire ownership of the grave marker, the fact that the Museum acquired the marker with the knowledge and permission of the descendants of the marker's owners is certainly suggestive that it has the authority to possess the marker.

3 For other states' views, see e.g., State of Tennessee v. McClain, 2010 WL 3244897 (Tenn. Cir. Ct. App. 2010) (At issue in this case was $60,000.00 worth of cemetery damage occasioned by five men on an apparent drunken bender - a scenario that easily qualifies as desecration.) and Huntsman v. State, 971 N.E.2d 215 (In.Ct.App. 2012) (In this case, the defendant pled gUilty to having dug five feet of dirt from above a grave of a recently-deceased individual, "... with the intent of attempting to resurrect. .. II the deceased. Id. at 1-2. While digging, the defendant also urinated in the grave. Again, this scenario is clearly desecration). 4 Reichelt, supra, at 102. 5 Exempted from the purview of this law is the Louisiana Unmarked Human Burial Sites Preservation Act, La. R.S. 8:671, et seq. This law is not applicable to this matter. 6 A grave marker would be classified as a movable under Louisiana law. Basically, movables are things that can be moved from one place to another. Bailey v. Kruithoff, 280 So.2d 262 (La.App. 2 Cir. 1973). 7 La. C.C. Art. 481.

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OPINION 13·0120
Hon. Gene Reynolds
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In other words, because there is no special law in Louisiana governing the possession or ownership of a grave marker that has been separated from its grave through some mechanism other than intentional or criminal acts of the current possessor, it is our opinion that the grave marker is no different from any other movable property in Louisiana and that it may be possessed and curated (or even owned) by a museum pursuant to the law related to the possession and ownership of movables. In the case of the Dorcheat Historical Museum grave marker, it is simply an added benefit to the Museum's ability to possess the grave marker that it possesses the marker with the permission of the descendants of the individual named on the grave marker. We are aware of no law that has been violated by the Museum's actions in this matter.

We hope this sufficiently answers your inquiry; however, if we may be of further assistance please do not hesitate to contact our office.

Sincerely yours,

By: --"';~-+.I:-f-+--~:"""-_--

JDC/RMS/tp

cc: Lucy L. McCann, Director, Louisiana Cemetery Board Charles R. "Chip" McGimsey, Ph.D., Louisiana State Archaeologist