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§8-187. Abandoned cemetery on privately owned land - Visitation rights.
Any relative of the deceased who wishes to visit an abandoned cemetery which is completely surrounded by privately owned land, for which no public ingress or egress is available, shall have the right to reasonable ingress or egress for the purpose of visiting such cemetery. This right of access to such cemeteries extends only to visitation during reasonable hours and only for purposes usually associated with cemetery visits. For the purposes of this section, "abandoned cemetery" means any place where human skeletal remains are buried and which no body has been interred for at least twenty-five (25) years and where such site is readily identifiable as a cemetery by an inspection of the property. Any relative of the deceased who wishes to visit an abandoned cemetery shall make a good faith effort to notify the owners and tenants, if any, of said property prior to visiting the cemetery. This section shall not be interpreted to allow the creation of an easement or claim of easement nor a right of ownership or claim of right of ownership to an abandoned cemetery.  Added by Laws 1992, c. 214, §1, eff. Sept. 1, 1992.
§21-1167. Destruction, mutilation, etc. of cemetery structures, markers, etc. – Sale or barter of veteran markers.
Every person who:
1. Shall willfully with malicious intent destroy, mutilate, deface, injure or remove any tomb, monument or gravestone, or other structure placed in any cemetery or private burying ground, or any fence, railing, or other work for the protection or ornament of any such cemetery or place of burial of any human being, or tomb, monument or gravestone, memento, veteran marker from any war, or memorial, or other structure aforesaid, or of any lot within a cemetery, or shall willfully or with malicious intent destroy, cut, break, or injure any tree, shrub or plant, within the limits thereof; or
2. Knowingly buys, sells or barters for profit any veteran marker from any war that is placed on a lot within a cemetery or place of burial of any human being, shall be guilty of a misdemeanor if the amount of damage is less than Five Thousand Dollars ($5,000.00), and shall, upon conviction thereof, be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not less than ninety (90) days, or by both such fine and imprisonment. In addition, the court shall require the person to perform not more than one hundred twenty (120) hours of community service. If the amount of damage exceeds Five Thousand Dollars ($5,000.00) the person shall be guilty of a felony and shall, upon conviction thereof, be punished by a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), or by imprisonment in the county jail for not less than six (6) months, or by both such fine and imprisonment. In addition, the court shall require the person to perform not more than two hundred forty (240) hours of community service. The court shall not suspend any portion of the community service requirement set forth in this section.
 R.L. 1910, § 2462. Amended by Laws 1989, c. 193, § 2, eff. Nov. 1, 1989; Laws 2001, c. 386, § 1, eff. July 1, 2001; Laws 2003, c. 179, § 1, eff. Nov. 1, 2003; Laws 2005, c. 225, § 1, eff. Nov. 1, 2005.
The information below was submitted by: Brenda Franklin
GENERAL COUNSEL OPINION 2000-6
SUBJECT: Destruction of Family Cemeteries
What actions are available to the Cherokee Nation and/or its citizens to prevent the destruction of a cemetery or to restore a cemetery after it has been destroyed or desecrated:Title 8, Section 187 of the Oklahoma Statutes states that any relative of a deceased person may visit an abandoned cemetery located on private land for reasons usually associated with visiting a cemetery. An abandoned cemetery is defined, for purposes of Section 187 only, as one where no body has been buried for at least twenty-five (25) years and the area is obviously a cemetery. The only requirement for entering private property to visit the cemetery is that the person who wishes to visit must make a good faith effort to notify the owner(s) or tenant(s) of the land of the desire to visit prior to visiting. If a person is unable to provide notice of the desire to visit, then they may visit without notice. However, it is strongly recommended that notice be provided in advance in order to avoid confrontations. Persons exercising this right should also keep in mind that they would be liable for any damage to property caused by their visit. There is no counterpart to Section 187 in the Cherokee Nation Code.Under the common law, if the cemetery and pathways to it are visible to the naked eye, or would have been had the purchaser inspected the property in a reasonable manner, then an easement has been created. Persons wishing to visit the cemetery may do so, using established routes, in a reasonable manner for legitimate purposes. Since this easement is created under common law, there is no requirement for the cemetery to be abandoned in order for persons to visit it. Again, persons visiting the cemetery would be liable for any damage caused by them during their visit. It is recommended that notice be given to the owner or occupant prior to visiting to prevent confrontations.Title 21, Section 1161 of the Oklahoma Statutes states that it is a felony to remove a body, or part of a body, from a cemetery without authority. It is also a felony to willfully or maliciously damage a casket or burial vault. Punishment for violating this section ranges from one (1) to five (5) years imprisonment, a fine of up to Five Thousand Dollars ($5000), or a fine and imprisonment.Title 21, Section 1167 of the Oklahoma Statutes states that it is a misdemeanor to willfully or maliciously destroy, mutilate, deface, injure or remove any tomb, monument or gravestone, or other structure placed in any cemetery or private burying ground. It is also a misdemeanor to damage any fence, railing, or other work for the protection or ornament of any such cemetery or place of burial of any human being. Damaging or destroying any tree, shrub or plant within the limits of a cemetery is also prohibited. Punishment for violating Section 1167 is a fine of Fifty Dollars ($50) to Five Thousand Dollars ($5,000) or imprisonment in the county jail for up to six (6) months, or both a fine and imprisonment.These two laws are found in the state statutes. All information necessary to prosecute the offender(s) must be delivered to the district attorney of the county where the cemetery is located. Whether or not charges are filed for violations of these statutes is up to the discretion of the district attorney.Section 1161 of the Cherokee Nation Code is identical to Section 1161 of the Oklahoma Statutes except for the penalty. The Cherokee Nation Code provides for a default punishment that would be applicable to a violation of Title 21, Section 1161.Section 1167 of the Cherokee Code is identical to Section 1167 of the Oklahoma Statutes.For violations of the listed Cherokee laws, all information necessary to prosecute the offenders must be presented to the tribal prosecutor. The cemetery site must be located in Indian country for the Tribe to have jurisdiction. Discretion to prosecute is in the hands of the tribal prosecutor.Recommendation:It is recommended that the Cherokee Nation disseminate this information to its citizens so that they will have it in order to protect cemeteries from destruction or desecration. It is also recommended that the Nation consider bringing legal action on behalf of its citizens. Appropriate legal actions are listed below.Action Before the Destruction/Desecration of a CemeteryIn Oklahoma, establishing a family cemetery creates a permanent easement against title to the land. It is not necessary that the deed mention the easement for it to be legally valid. A prospective purchaser of land is required to inspect the property to be purchased. As long as the cemetery was discovered during the inspection, or would have been discovered if the purchaser had properly inspected the property, then the purchaser is bound by the easement. The easement created by the establishment of a family cemetery does not end unless the cemetery ceases to exist. For the existence of the cemetery to cease, use of the cemetery must stop and the bodies have to be legally removed. Heiligman v. Chambers, 338 P.2d 144 (Okla. 1959)The appropriate action prior to damage or desecration of a cemetery would be an injunction. The Heiligman case specifically states that this is an available remedy. When a family learns that its cemetery is about to be damaged, the family may request a temporary injunction from the court in order to prevent the property owner from taking action. This would safeguard the cemetery until a hearing could be held by the court to determine whether the injunction should be permanent. "Family" is used above as, most likely, to sue a property owner, a person would have to have a family member buried in the cemetery.B. Actions After Destruction/Desecration of a Cemetery1) Time BarsFor situations where the destruction has already taken place, the injured party may be able to sue in order force the property owner or the guilty party to restore the cemetery or to seek damages sufficient to restore the cemetery. Since the existence of the cemetery is generally perpetual, it would stand to reason that there is no statute of limitations in filing a suit to restore the cemetery. This proposition is supported by an Oklahoma Supreme Court case decided in 1944.In Hughes v. Harden, 151 P.2d 425 (Okla. 1944), the owner of a cemetery allowed bodies to be buried in a plot owned by another person. When the owner of the plot sued, the cemetery owner claimed that he owned the plot by adverse possession. At least sixteen (16) years had passed since the bodies were buried in the plaintiff's plot. The Supreme Court of Oklahoma ruled that possession by the owner of the plot continues as long as the graves are marked and distinguishable and the cemetery is used. The main basis for the court's reasoning was that the plaintiff's wife was already buried in part of the plot and this constituted possession. With a body present, possession continues and there can be no adverse possession exclusive enough to change ownership or rights in the land.However, a court might apply the fifteen (15) year limitation period for adverse possession to a case in which the cemetery has already been destroyed. A cemetery that has been destroyed could be considered unused and therefore, possession by the original owners could be deemed to have ended. This would allow the current owner to claim ownership of the land containing the cemetery by adverse possession once the fifteen (15) year statutory period has elapsed. It would therefore be very important for families to begin an action as soon as possible.2) Action to Remove ConstructionIf a guilty party has done construction over a cemetery, it may also be possible to bring an action to have the buildings removed. This would be an action for trespass to the easement in the cemetery. In the Hughes case noted above, the plaintiff sued for trespass to have the bodies removed from his plot and the court ruled in his favor. A court might require the owner of the property to remove any buildings from the cemetery grounds. If an action like this is allowed, the Oklahoma Supreme Court has ruled that time does not bar the action.3) Bona Fide PurchaserIt may not be possible to bring an action against a bona fide purchaser. The statutes and case law seem to indicate that the cemetery must be visible upon a reasonable inspection of the property. If the cemetery has already been destroyed and no signs of its existence remain, there would most likely be no cause of action against the new owner to restore the cemetery. The only cause of action would be against the party who destroyed the cemetery. In a lawsuit against the guilty party under these circumstances, money damages would probably be the only remedy.4) Action in TortAn action for intentional infliction of emotional distress can be brought. A person would have to show that the defendant in the action engaged in activity that was so extreme and outrageous that it cannot be tolerated in civilized society and that the defendant intentionally or recklessly caused severe emotional distress beyond which a reasonable person could be expected to endure.Probably, the destruction of a family cemetery would meet the requirements to prove this cause of action. Emotional distress of the nature necessary to win at least nominal damages could be proven as a result of the conduct. Once nominal damages are won, punitive damages can be awarded.Title 23, Section 9.1 of the Oklahoma Statutes places requirements on a court before awarding punitive damages. The defendant must have acted with reckless disregard for the rights of others or the defendant must have acted intentionally and with malice towards others.In the case of a cemetery intentionally destroyed, the evidence would probably support a finding, by a standard of clear and convincing evidence, that the defendant acted intentionally and with malice towards others. The limit for punitive damages would be Five Hundred Thousand Dollars ($500,000).In the alternative, if by clear and convincing evidence the jury finds that the defendant acted with reckless disregard for the rights of others, punitive damage would also be available. Under the "reckless disregard" standard, punitive damages are limited to One Hundred Thousand Dollars ($100,000).ISSUED: March 23, 2000________________________ _______________________
Richard D. Osburn Julian K. Fite
Cherokee Nation Justice Department General Counsel
This page was updated: Monday, 11-Mar-2013 12:16:59 CDT
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