Hidden under the pavement: Recognizing Moses Cemetery as a national historic site worthy of preservation

Imagine you’re a construction worker getting started on a project in Bethesda, Maryland. You just broke ground and to your surprise, you find a tombstone. You dig a little deeper and discover more evidence of a cemetery hidden under the pavement.

This is exactly what happened when development began on River Road in Bethesda, Maryland.

After emancipation in the late 1800s, River Road became a flourishing Black community populated by formerly enslaved people. The people in that community buried their loved ones in what is now known as Moses Cemetery . But in the late 1950’s, through the efforts of the KKK and others, Moses Cemetery was paved over to build an apartment building and parking lot.

Since then, the River Road area has continued to develop, and remnants of the once prosperous Black community have continued to vanish.

Maryland’s Housing Opportunities Commission of Montgomery County gained ownership of the land covering Moses Cemetery in 2017. In 2021, the county attempted to sell the land to a developer but a judge stopped the sale after descendants of those buried in Moses Cemetery brought a lawsuit in court. The county appealed that decision to the Maryland Court of Appeals and now the Maryland Supreme Court is reviewing the decision. So, for now, the initial sale is halted. But if the Maryland Supreme Court sides with the county and allows it to sell the land, another piece of history may be lost forever.

What else can be done to protect Moses Cemetery?

Congress created The National Historic Preservation Act of 1966 to protect important pieces of history like Moses Cemetery. The Act says that any time an important piece of history may be affected by development on federal land or development that is funded by federal money, the federal government—through the Department of Interior—must conduct a review of that development to ensure that the affected pieces of history are preserved if possible.

While the local county is separate from the federal government, the county receives a significant amount of funding from the federal government for its programs at the Housing Opportunities Commission. In fact, the Housing Opportunities Commission of Montgomery County was created to execute the U.S. Department of Housing and Urban Development’s (“HUD”) country-wide goals at the local level in Montgomery County.

Thus, before doing anything with Moses Cemetery, the Housing Opportunities Commission must undergo the review process required by the National Historic Preservation Act.

There’s an additional but extreme route that may be pursued to protect Moses Cemetery: The federal government could acquire the property from Montgomery County via eminent domain.

Eminent domain is a power granted to the federal government to acquire land from private landowners. Through eminent domain, the government can take someone’s land so long as the government properly pays for the land and the purpose of the taking is to use the land for the public’s benefit.

While this action may seem extreme, it’s not uncommon for the federal government to use its eminent domain powers to acquire historical property for the purpose of honoring the lives buried under the pavement.

After the Civil War, the federal government used its eminent domain powers to acquire the land where the Battle of Gettysburg was fought. The Supreme Court upheld this exercise of power and said that it was valid for the federal government to use its eminent domain power to acquire private property containing the sacred resting place of Union soldiers. The Supreme Court said that the land had historic preservation purposes and was worthy of federal government protection.

More recently, in 2001, the then Secretary of the Department of Interior successfully recommended that the federal government exercise its eminent domain powers to memorialize Japanese Internment Sites.

Like the examples just mentioned, Moses Cemetery is also worthy of protection. If the Housing Opportunities Commission of Montgomery County will not take the steps necessary to preserve Moses Cemetery, then the federal government should use its eminent domain powers to acquire Moses Cemetery and preserve it under the National Historic Preservation Act of 1966 and other historic preservation authority.

As more action is taken to erase this country’s shameful history of enslaving Black people, it’s now more important than ever to preserve sites such as Moses Cemetery. It’s time for those buried under that pavement to receive the respect they deserve not just in death, but the respect that was withheld from them by this country in life.

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