This article pulls up and highlights a land use restriction, or financial burden, imposed upon West Virginia private real estate owners who inadvertently uncover human skeletal remains in unmarked graves on their property. In this state, those coming across human bones that historians and archaeologists eventually deem have no historical or archeological significance have a choice—pay the costs to have the bones removed and reinterred or cover the bones and use the property only as a cemetery in perpetuity. This burden becomes more acute when comparing West Virginia’s law to those of other states that require government officials, at public expense, to remove and re-bury discovered bones in a state cemetery set aside for that purpose. This leads one to consider whether West Virginia’s law, as implemented, constitutes a Fifth Amendment “taking” of private property for public use without just compensation, that is, whther the state is imposing upon private property owners a de facto cemetery for the remains of unknown and insignificant persons.
It may be helpful to point out what this Article is not about. This Article does not address bones located in marked and designated burial sites, such as established cemeteries. It also does not take up the uncovering of Native American remains, or for that matter, any other remains that the scientific and cultural communities ultimately determine are historically or archeologically significant.
Rather, this Article focuses on the inadvertent discovery of the bones of people who, through the passage of time, have been forgotten or abandoned, and who historians and archaeologists deem unremarkable.