The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 90 - Burial*

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*Cross references: Real property, ch. 47; zoning, ch. 61; skeletal remains and burial site preservation, ch. 70.
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Sec. 90-1. Expenses.

(a) The Tribe shall contribute the sum of $500.00 toward the burial expenses of Tribal members who are at least 65 years old, who are indigent and without an estate adequate to pay for their burial.

(b) For purposes of this section, the term "indigent" shall mean without resources or financial means to pay for burial. Persons with property, income, assets or an estate sufficient to pay for burial expense shall not be deemed to be indigent.

(c) In the case of indigent members who die while living away from the Reservation but whose family desire an on-Reservation burial, the Tribe shall also pay reasonable transportation expenses to return the deceased member to the Reservation.

(Res. No. 35, 10-18-1948; Res. No. 62, 10-24-1950; Res. No. 899, 9-21-1965; Res. No. 82, 10-30-1981)

Sec. 90-2. Burial prohibited on certain property.

(a) It is unlawful to bury a deceased person on property assigned to or leased from the tribe or a tribal entity, or on property that is subject to a mortgage, deed of trust or loan guarantee provided by the Tribe, a tribal entity or a commercial lender.

(b) It is unlawful to bury a deceased person on the possessory interest of another without the prior written consent of the holder of that possessory interest. This paragraph does not apply if the burial is in an established cemetery identified and surveyed separately on a survey map and described separately in a property description, and to which public access is provided in the property description or by tribal ordinance.

(c) It is unlawful to build or place a road, driveway, home or other fixture within 10 feet of a known human grave.

(d) A violation of this section is also a violation of Cherokee Code Sec. 14-10.11 (injuring real property), and may constitute a violation of other sections of the Cherokee Code, as circumstances indicate.

(e) The Cherokee Court shall order the violator of this section to move the deceased person at the violator's expense if movement is requested in writing by the injured party delivered to the violator within two years of burial, and the injured party proves to the court by a preponderance of evidence and by virtue of a complaint and evidence provided to the Court, that the violator was responsible for having the deceased buried in the offending location and did so without permission of the person holding or entitled to possession of that possessory interest. In addition, the Court may order the violator to pay the injured party $1,000.00 for diminution in value of the property. A deceased person buried in violation of this section shall be moved notwithstanding the prohibitions expressed in Cherokee Code Chapter 70 or those that may be imposed by Tribal custom. The court shall order the deceased to be moved upon a showing that this section was violated.

(f) The remedies provided in this section are not exclusive and may be imposed in addition to other remedies provided in the Cherokee Code for violation of Tribal law.

(g) A person or entity, other than the violator, that physically digs the grave and inters the deceased is exempt from liability in this section if it did not select the burial site and is merely acting at the request of the violator, and did not know or have reason to know that permission to bury at that site was not obtained by the violator.

(Ord. No. 96, 6-28-2004; Ord. No. 625, 2-23-2005)

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