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WILLIAM FELEPCHUK
the iniguities facing both Black and Indigenous burial places and the legal
protections, or lack thereof, afforded to them in the US context. Her study
seeks to understand “the ready inclusion of white death and burial sites into
the commons and the hesitant or refused recognition of non-white death and
burial sites reveals and reflects the extent to which these lives are differently
valued as a matter of both law and culture.”*°
The creation, maintenance, and destruction of spaces of burial in North
America is very much determined by legal regimes governing the ambiguous
and intermediary status of the dead in the common law. This ambiguous
status of the interred dead body has been variously defined by scholars as
“both a person and a thing," as "nullius in bonis [...] no person’s property,”
or as being affected by the “quasi-property”’ rights of living relatives. Rights
related to the individual dead are generally invested in the living rather than
the dead themselves. Furthermore, these rights tend to belong to surviving
spouses and next-of-kin“ rather than to collectives or communities. These
rights are not property rights, but they retain many aspects of property
rights. These rights flow from a proven connection to the deceased; less direct
connections that are articulated through collective belonging tend to be, but
are not always, greeted with dismissiveness.*
The integrity of whole cemeteries is generally protected by law in both
Canadian and US contexts regardless of whether next-of-kin with a quasi¬
property interest survive. This protection extends both to “live cemeteries”*
as well as “old or abandoned cemeteries.” According to Arthur Street’s
classic text on US cemetery law, “Graves must be regarded as sacred and be
left undisturbed except for good cause. The mere fact that a grave appears
to have been abandoned by surviving relatives will not justify its ruthless
invasion.”“® According to Percival Jackson’s 1937 text on The Law of Cadavers
and of Burial and Burial Places, places of burial are generally and universally
protected from disinterment: “Disinterment is generally abhorred. Though
40 Mary L. Clark, “Treading on Hallowed Ground: Implications for Property Law and Critical
Theory of Land Associated with Human Death and Burial, Kentucky Law Journal, Vol. 94
(2005), 488.
“| Stroud, Law and the Dead Body, 115.
2 Alison Dundes Renteln, “The Rights of the Dead: Autopsies and Corpse Mismanagement in
Multicultural Societies.”, South Atlantic Quarterly, Vol. 100, No. 4 (2001), 1006.
Percival E. Jackson, The Law of Cadavers and of Burial and Burial Places, New York,
Prentice-Hall, 1950, 133.
4 Renteln, The Rights of the Dead, 1006.
15 For example, see Mai-Linh K. Hong, “‘Get Your Asphalt Off My Ancestors!’: Reclaiming
Richmond’s African Burial Ground”, Law, Culture and the Humanities, Vol. 13, No. 1 (2017),
81-103.
‘6 Arthur L. H. Street, American Cemetery Law: A Digest of the Cemetery Laws of all the States
and Important Court Decisions, (Madison, Wisconsin: Park and Cemetery, 1922), 5.
Street, American Cemetery Law, 5.
48 Tbid., 51.
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