If someone knowingly invades a grave created in the last few hundred years it's a felony. But it isn't if you destroy a far older American Indian burial site on your property, officials with the Alabama Historical Commission say.
There have been at least two attempts to change the law to include mound structures and remove the distinction but both have failed, according to archaeologists familiar with the situation. They say the recent controversy over a stone mound in Oxford shows why the law needs revision.
Under the current law the City of Oxford didn't have to hire the University of Alabama for a study of a stone mound behind the Oxford Exchange. And the archaeologists who performed the study didn't have to send the study to the Historical Commission for review, a move that highlighted the commission's disagreement with the report's findings.
The mound is estimated to be 1,000 years old and of American Indian construction. It was scheduled for demolition. The dirt underneath would have become fill for a Sam's Club. A private landowner now says the dirt is coming from his property. By all appearances a contractor hired by the city's Commercial Development Authority has stopped work there.
City Project Manager Fred Denney said the city paid for the report to remove doubt about the importance of the site.
"We just thought since there was some question it was a thing to do and remove all questions," Denney said.
The report found the site did not belong on the National Register of Historic Places and no evidence of burials or funerary artifacts. It did recommend the city keep an expert on hand in case evidence of burials was found. The Historical Commission disagreed with the report's conclusions and said the site should be left alone.
The current law says any person who desecrates graves and mutilates corpses is guilty of a Class C felony.
But the law has a different standard for American Indian sites. "Any person who maliciously desecrates an American Indian place of burial or funerary objects on property not owned by the person shall be guilty of a Class C felony and upon conviction the person shall be punished as provided by law."
That "not owned" part of the law gives land-owners in Alabama ultimate authority over what happens to these sites according to Greg Rhinehart, project reviewer for the Historical Commission. When Rhinehart spoke with The Star about Oxford a month ago he said the law required the city to relocate any bodies found because he thought the city was getting the dirt from a private land owner. Because the city owns it that's not required, he said.
"If the city owns the land they can do whatever they want," he said.
Rhinehart said federal protection laws would apply if there was a federal connection to a project on private land, such as a permit or federal funding.
The proposed revision to the law, introduced by state Sen. Wendell Mitchell, D-Luverne, would omit the language about the American Indian sites. It would also expand the law to cover mounds like the one in Oxford, according to a draft provided by the Historical Commission.
Mitchell said he introduced the bill as a part of a package of laws to reform cemetery regulations in the state. He said he intends to reintroduce the bill again.
"In Alabama the protection on all fronts is at best mediocre," Mitchell said.
According to State Archaeologist Stacye Hathorn, Mississippi provides more protection for American Indian burials. Her counterpart, Mississippi Chief Archaeologist Pam Lieb said what happened in Oxford could never happen in Mississippi.
"They wouldn't have done it at all because in Mississippi we have what's called Mississippi Landmarks," Lieb said. "That (includes) any significant prehistoric site. Any archaeological site is automatically a Mississippi Landmark. This would be considered a landmark."
If a landmark is publicly owned, like Oxford's mound, the state of Mississippi has jurisdiction over it, she said.
Not so in Alabama where the Historical Commission has interpreted its excavation law, which is separate from the law on destroying graves and mutilating bodies, as applying only to property owned by the state.
Robert Thrower, tribal historic preservation officer and cultural authority director for the Poarch Band of Creek Indians in Alabama, is glad the proposed amendment includes stone mounds. Thrower has said the issue of whether such mounds contain burials is irrelevant; he believes the sites are still sacred.
"Hopefully all the stuff we've been through (with Oxford) is proof we need more protection," Thrower said.
Hathorn said expanding the law would be the "most positive outcome" from the situation. Eloise Josey, executive director of the Alabama Indian Affairs Commission, said the commission disagrees with how the current law treats American Indian burials. She said part of the problem is people put them in the same category as ancient Egyptian tombs.
"We assume in this country a lot of times that when you're dealing with a burial you're dealing with an ancient person," Josey said, adding later, "It's a terrible distinction, but that's how people look at that.
"And, yes, we're trying to rectify it."