As a professional archaeologist who has excavated many burials in the course
of my career please let me chime in.  Burial grounds are "owned" by the
people buried in them and their descendants.  I put "owned" in quotes
because it is more in the sense of a private claim to the property as
opposed to a deeded parcel (although some family plots are contained in
deeds).  They are supposed to be registered with the county Office of
Revenue as a cemetery, at which point the parcel is permanently placed on
the tax map and it becomes tax exempt.  A cemetery has no assessed value and
cannot be disturbed in any way without a lengthy court process -- even then,
permission is usually denied unless there is a compelling reason.

As Joanne noted, free access must be given to descendants or anyone with a
"reasonable" interest, e.g. historians, genealogists.  This does not mean
that you can go traipsing into someone's yard unannounced.  While
technically you must always ask permission before entering someone's land,
if the cemetery is in the middle of nowhere, and the land is not posted No
Trespassing, it probably won't hurt to go look at it.  But, if the land is
posted or it is in the immediate vicinity of someone's home, you MUST ask
permission or risk arrest for trespass.  Most property owners will give you
permission -- by law they MUST allow you reasonable access if you have a
legitimate reason for asking it.  If they refuse permission you can apply to
the court for access.

It is a violation of state and, in some cases, federal law to violate or
disturb a burial in anyway.  In Virginia (and I believe most states),
disturbing a grave is a felony.   Archaeologists and other professionals
must apply for permits to excavate burials, and they must show very
compelling reasons.  Short of as part of a full-blown archaeological
project, permission is rarely granted.  In Maryland (where I excavated
burials), permission is sought through the State's Attorney's office.  In
Virginia it is through the Department of Historic Resources and the court.
While I can't say for sure, I doubt very much that you would get an
exhumation order for DNA testing of this sort.  Satisfying personal
curiosity is not considered a compelling reason.

For those interested in reading the laws regarding cemeteries, they may be
found at the Code of Virginia on-line database
http://leg1.state.va.us/000/src.htm --- a very useful site for many
purposes.  Search on "burials" or enter the reference number.  Pertinent to
this case are:
18.2-126 Violation of Sepulture. . .
57-27.1 Access to cemeteries located on private property. . .

If it is any consolation, Jim, it is unlikely that anything remains of your
ancestor.  Occasionally archaeologists do uncover well-preserved skeletal
remains, but after almost 25 years in the field I can tell you that that is
the exception.  In the overwhelming number of cases it is truly dust to
dust, with sometimes nary a stain left.  While in some cases it has been
done, and the science is getting better all the time, retrieving DNA from
even well-preserved skeletons is not as easy as they make it seem on CSI et
al.  I wish I could tell you differently, Jim, but you're going to have to
find your proof another way.

Kathy Liston

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