IN RE: MICROSOFT’S SEIZURE OF A HISTORIC CEMETERY, APPLICABLE LAWS ASSUMING NATIVE AMERICANS ARE BURIED THERE OR PEOPLE OF NATIONAL HISTORY WHICH INCLUDE SETTLERS, PIONEERS, SLAVES, NOTABLE FIGURES, ETC CFR 36, the Native American Graves Protection and Repatriation Act (NAGPRA) (Pub. L. 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048), applies which states:“Intentional excavation and removal of Native American human remains and objectsThe intentional removal from or excavation of Native American cultural items from Federal or tribal lands ... is permitted only if— (1) such items are excavated or removed pursuant to a permit issued under section 470cc of title 16 which shall be consistent with this chapter; (2) such items are excavated or removed after consultation with or, in the case of tribal lands, consent of the appropriate ... Indian tribe ... organization; (3) the ownership and right of control of the disposition of such items shall be as provided in subsections (a) and (b); and (4) proof of consultation or consent under paragraph (2) is shown.” VIOLATIONS OF THE NHPA The NHPA requires consultation with Indian Tribes on undertakings that potentially affect sites that are culturally significant to them. 36 C.F.R. § 800.2(c)(2); 54 U.S.C. § 302707. Consultation must occur regarding sites with “religious and cultural significance” even if they occur on ancestral or ceded land. Id. § 800.2(c)(2)(II)(D). Under the consultation regulations, an agency official must “ensure” that the process provides Tribes with “a reasonable opportunity to 1 identify its concerns about historic properties advise on the identification and evaluation of historic properties ... articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects.” Id.§ 800.2(c)(ii)(A). This requirement imposes on agencies a “reasonable and good faith effort” by agencies to consult with Tribes in a “manner respectful of tribal sovereignty.” Id. §800.2(c)(2)(II)(B). Acting “in consultation with ... any Indian tribe ... that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take steps necessary to identify historic properties within the area of potential effects.” Id. §800.4(b). The agency must evaluate the historic significance of such sites and determine whether they are potentially eligible for listing under the National Register. Id. § 800.4(c). If the agency determines that no historic properties will be affected by the undertaking, it must provide notice of such finding to state and tribal historic preservation offices and the Advisory Council on Historic Preservation, which administers the NHPA. Id. § 800.4(d). The regulations give those parties the opportunity to object to such a finding, which elevates the consultation process further. Id. If the agency finds that historic properties are affected, it must provide notification to all consulting parties, and invite their views to assess adverse effects. Id. Any adverse effects to historic properties must be resolved, involving all consulting parties and the public. Id. § 800.6. If adverse effects cannot be resolved, the process is elevated again to the ACHP and the head of the agency undertaking the action. Id. §800.7. Until this process is complete, the action in question cannot go forward. Native American sacred sites are defined differently depending on the tribe. In the United States, the legal term “traditional cultural property” is used to define sacred sites. A traditional 2 cultural property is a property “eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (1) are rooted in that community’s history; and (2) are important in maintaining the continuing cultural identity of the community.” Embedded in this definition is the understanding that none, other than the indigenous community, can define sacred sites. With regard to the remaining categories of the protected interred, please refer to National Historic Preservation Act (“NHPA”) as a whole DEDICATION OF BURIAL SITES In the matter of In Re: Hunlick’s Creek Cemetery , a Pennsylvania Court stated that a dedication of land to a cemetery requires no formality but occurs byoperation of law once burials are made. In Stockton v. Weber, a California court held that a single burial will entitle the interred cadaver to protection, and land containing a human being will be maintained inviolate. In Concordia Cemetery Association v. Minnesota, an Illinois Court said “What creates a cemetery is the act of setting the ground apart for the burial of the dead, marking it, and distinguishing it from the adjoining ground as a place of burial.” The Cemetery is the dominant estate while the remaining land purchased by Microsoft is the subservient estate. It is a well-established principle of common law that once human remains are intentionally placed in real property, such real property and all subsequent owners are burdened by encumbrances in favor of the dead, the kin of the dead, and the public. The dedication of land for a cemetery is in the nature of an irrevocable covenant running with the land. It is an implied contractual relationship that bonds the owner irrevocably to the following: 3 1. The owner cannot remove or disturb any grave.Relatives and friends have unrestricted rights to visit and care for the graves. 2. Cemetery property cannot be used by the owner for any purpose inconsistent with cemetery purposes. 3. The owner cannot reduce the size of the land set apart as a cemetery. See Brief of Cemetery Law Scholars as AMICI CURIAE , Knick v. Twp. of Scott , 139 S. Ct. 2162, 2164 (2019), (https://www.supremecourt.gov/DocketPDF/17/17-647/56003/20180802122937673_36725%20p df%20Seidemann.pdf ) EASEMENTS OF THE BURIAL SITES AND OWNERSHIP The easement to the next of kin that occurs when a body is interred into a cemetery. The term "next of kin," in this character of case, means those who inherit from the deceased, the fee, interest, or easement in the soil containing the dead body, under the statute of descent. Thompson on Negligence, vol. 7, sec. 748, page 891; Mount v. Tremont Lbr. Co ., 121 La. 64, 46 So. 103, 16 L.R.A. (N. S.) 199, 126 Am. St. Rep. 312, 15 Ann. Cas. 148. Pettigrew v. Pettigrew , 207 Pa. 313, 56 A. 878, 880, 64 L.R.A. 179, 99 Am. St. Rep. 795. Thus, when human remains are intentionally placed in real property with the consent of the owner, which happened here, the common law recognizes that the character of such real property has been perpetually transformed. In The Law of Cadavers and of Burial and Burial Places 1 , it states that "Whatever may be the mode of acquisition, and whatever the title acquired, 1 Percival Jackson, THE LAW OF CADAVERS AND OF BURIAL AND BURIAL PLACES 248 (2nd ed. 1950) (“We emphasize a basic principle of the law of burial that, whatever may be the mode of acquisition, and whatever the title acquired, once land has been devoted to burial it no longer is subject to mere rules of property law.”). Prior to the publication in 2015 of THE LAW OF HUMAN REMAINS and CEMETERY LAW: THE COMMON LAW OF BURYING GROUNDS IN THE UNITED STATES, the most recent treatise on cemetery law in the United States was Percival Jackson’s THE LAW OF CADAVERS AND OF BURIAL AND BURIAL PLACES (2nd ed. 1950). Its Implications for Land Use In Louisiana and Beyond, 42 WM. & MARY ENVTL. L. & POL’Y REV. 895 (2018); Tanya D. Marsh and Daniel Gibson, CEMETERY LAW: THE COMMON LAW OF BURYING GROUNDS 4 once land has been devoted to burial, it no longer is subject to mere rules of property law." In Hutchinson v. Akin , 5 Ky. Op 373, an 1871 Kentucky Supreme Court decision, the Kentucky Supreme stated without any reservation or inhibition in the deed, Kentucky law (which is suggestive but not controlling in Virginia) prohibits Microsoft from removing the stones that mark the resting places of the dead buried there or injuring or removing the enclosure around the graveyard. It also compels Microsoft to permit relatives of those buried there to exercise the right of ingress and egress.. The actions of Microsoft are a violation of the law established established in multiple states including Tennessee, Virginia, etc., but as in in Rose v. Rose , Ky. App. 237 S.W.2d 80 (1951), in which the Kentucky courts confirmed that the right of an heir to visit a grave cannot be extinguished by the subservient fee owners through conveyance to another. In this case, Microsoft are the subservient fee owner. This means that the rights of the next-of-kin or the general public at large to visit the graves of the decedents buried in the Cemetery cannot be extinguished by Microsoft. The Cemetery is subject to the common law protections afforded to cemeteries, as well as any state protections, and/or federal protections. There is no property right to a dead body in a commercial sense, though the right to bury a dead body will be recognized and protected by the courts. Louisville & N. R. Co. v. Hall , 293 S.W. 1091, 1091(Ky. 1927). EMINENT DOMAIN To seize the dominant estate– inter alia– the Cemetery, Microsoft would have to argue that its for a public purpose, and therefore file an eminent domain proceeding and notify or attempt to notify next-of-kin so that they may state a claim for the easements they inherited in the burial plots and receive just compensation. Failure to do so would deprive the closest living nex-of-kin IN THE UNITED STATES (2015). See also Seidemann, Requiescat In Pace (reviewing the development of the uniqueness of cemetery property law in the civil law traditions). 5 of their right to assert a claim for protection or compensation and claim for any burial markers, if any. FIFTH AMENDMENT TAKINGS CLAUSE As in Knicks , supra, seizing the graves for a private purpose without compensation to next of kin violates the Takings Clause of the Fifth Amendment to the United States Constitution. CONCLUSION Common law, federal law, and state law prohibits Microsoft from seizing the cemetery to build a data center and the rights of those interred and their relatives shall be respected. - Deric Lostutter, 12/18/2022 6