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Court Rulings Affirm Burial Site Protection is Not a "Taking"

William Green

Does designation and protection of a burial site constitute a government "taking?" Recent Iowa and U.S. Supreme Court actions and non-actions address the takings argument and uphold a state's ability to preserve burial sites on private land.

As many archaeologists know, Iowa has had a burial site protection and reburial law since 1976 [see D. Anderson, 1985, Reburial: Is It Reasonable? Archaeology 38(5):48--51]. The law prohibits disinterment of ancient human remains without the permission of the state archaeologist. In 1991 a burial mound was found on one lot within a 124-lot subdivision under development in the city of Ames. Through probing, Office of the State Archaeologist Burials Program Director Shirley Schermer and I confirmed the presence of human remains in the mound. [S. J. Schermer, 1991, Archaeological Investigations and Osteological Analyses at 13SR18 and 13SR19, Northridge Subdivision, Ames, Sory County, Iowa. Research Papers (16):2. Office of the State Archaeologist, University of Iowa, Iowa City.] I declined to give permission for disinterment, and it was not feasible to build a house on the lot while preserving the mound. The developers bought the lot back from its owner, and nothing was built there. The rest of the multimillion dollar project proceeded as planned.

The developers then sued the state, claiming a loss of $50,000 because of their inability to develop the one site.

On November 6, 1992, a district court dismissed the suit, ruling "rights to real property do not include the right to disinter human remains." According to the court, my refusal to permit disinterment was not a "taking" of property rights, and the state is not required "to pay compensation for loss of a property right that never existed."

The developers appealed this ruling to the Iowa Supreme Court. On July 27, 1994, the court ruled 4 to 1 that the designation of a burial site does not require the state to compensate a landowner for any loss in value that may follow the designation. The court specifically stated such designation does not constitute a government taking. When the developers acquired the property, "there was no right to disinter and build in the area where the remains were located. For that reason, there was no taking when the state archaeologist made the significant find and took action denying permission to disinter the human remains" [519 N.W.2d 367 (Iowa 1994)]. (Iowa Supreme Court Rejects Takings Challenge to State Law Prohibiting Destruction of Ancient Burial Mounds. Preservation Law Reporter 13:1141-1145.)

With reported funding aid from the National Association of Home Builders, the developers appealed this decision to the U.S. Supreme Court. On March 6, 1995, the U.S. Supreme Court rejected the appeal and let stand the Iowa ruling. By refusing to hear the appeal, despite pressure around the country to ease the perceived burden of government "takings," the U.S. Supreme Court upheld at least one state's ability to protect burial sites on private land.

Lobbyists and radio talk-show hosts are clamoring for revisions in state law, so the story is by no means over. Fears that the ruling may encourage developers and landowners to destroy sites before they can be recorded are as yet unfounded, but the situation requires constant vigilance. For now, however, burial sites in Iowa retain a legal status that generally encourages preservation.

William Green is with the Office of the State Archaeologist, University of Iowa.

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