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Sites in Need of Protection

Kellytown, Tennessee

See latest update

The Issue

The Kellytown burial site has been threatened by road widening.

(See also Hermitage Springs Burial Site, Old Hickory, Tennessee.)

Online Sources for Reading:

Read about Kellytown at TNARCH's web page on the Kelly Site Coarse Case.

The Alliance For Native American Indian Rights Defense Fund gives a chronology of events concerning the Kellytown Site at this page.

Action:

The Alliance for Native American Indian Rights Defense Fund requests that a donation be made toward court costs.

Contact:

Alliance for Native American Indian Rights of Tennessee Inc.
1305 Presidential Trace
Hermitage, TN 37076
(615) 885-9402

Email address: [email protected]
Website can be accessed at nativenashville.com



Update: 2000 29 November
tennessean.com/sii/00/11/29/01018910.shtml
Battle over Indian burial site continues
By Noble Spayberry and Monica Whitaker
Staff Writers

A legal battle sparked by the discovery of Indian graves continues to stall expansion of a busy intersection on the border of Davidson and Williamson counties, leaving some homeowners in limbo with no foreseeable end.

"It's the perpetual not-knowing that bothers everybody," said Toni Davis, who lost a slice of yard to the project at the intersection of Hillsboro Road and Old Hickory Boulevard, where almost 29,000 cars pass daily.

In early 1999, road-widening crews unearthed 800-year-old graves containing the remains of two Native American infants, a find that quickly stopped construction. While a dispute over the fate of the graves initially landed in the courts of Davidson and Williamson counties, it now awaits a Tennessee Court of Appeals ruling.

That court must decide if anyone living today retains the legal right to contest the Tennessee Department of Transportationís relocation of the graves. Williamson County Chancellor Russ Heldman ruled that Native American groups could formally join a lawsuit to protect the graves.

The decision by Heldman, who in a separate case also delayed construction of a portion of State Route 840 in Williamson County, broadened the interpretation of a Tennessee law that gave legal standing to only the blood relatives of the dead or buried.

Joe McCaleb, an attorney who represents 12 of the 15 Native Americans challenging TDOT, said his clients are more concerned with getting well-reasoned opinions than a quick appellate court decision.

"We think that the issues are very profound and involve some deep-seated constitutional issues that necessarily require time and thought. A lot of time and thought went into preparation of this case,íí he said. "We certainly would like the justices to deliberately consider their opinions, and Iím sure that they are."

Even the Tennessee Commission of Indian Affairs, which faces the threat of being phased out of existence, is not pressing for a speedy decision.

For years, Native American voices weren't allowed a forum in the courts over the grave issue, said Toye Heape, the commission's executive director. The courts can take their time considering those voices now, he said.

State legislators said earlier this fall that the commissionís sunset is scheduled for June 2002 unless an ad hoc group can devise concrete goals for the commission and work to minimize infighting among Native Americans.

In an extreme case, if no court decision is rendered and the commission dissolves, this case would continue with the individuals challenging state transportation officials, Heape said.

Department of Transportation spokeswoman Luanne Grandinetti would not comment on the legal issues.

The project, once scheduled for completion next month, stopped while only 32% complete.

If the state wins a favorable court ruling, completion would take about a year, Grandinetti said. The state would renegotiate contracts for the work, which would likely cost more than the original $1.9 million, she said.

Meanwhile, residents such as Davis must wait to learn if road crews will return to finish the project, which eliminated 216 trees that once shielded the home she shares with her husband, Butch, from the road. Now, there's only a jumble of debris that ís impossible to tend.

Davis said she respects the issues stalling construction, but also wants either removal of construction debris or confirmation of the projectís future.

"Even if youíre just a resident who wanted to keep the roadside looking nice, you can't," she said.


Update: 2001 8 Feb, TN AIM writes as to status, "The judge has stayed by his ruling giving standing to NASD in TN. It is before the Tennessee Court of Appeals and has been for about a year. Some site maintenance was done last month."

Update: 2001 12 July
Indians can't stop work on road, court decides
By MONICA WHITAKER
Staff Writer

A group of Native Americans and Tennessee's imperiled Commission of Indian Affairs have no legal standing to try to hold up a road expansion project where construction crews unearthed the ancient remains of three infants, the Tennessee Court of Appeals said yesterday.

Construction at the Hillsboro Road-Old Hickory Boulevard intersection has been stalled since the discovery in 1999. The graves straddle the Davidson-Williamson county line.

Tennessee Department of Transportation officials said court proceedings still existing in both counties must be concluded before construction can resume. Without any other agencies or residents trying to prevent the state from relocating the graves, though, the procedures become more routine.

''We're very pleased with the reversal'' of a Williamson County circuit judge's rulings, Transportation Department spokeswoman Luanne Grandinetti said yesterday. ''We hope construction will start at some point.''

The grave issue had rankled some local residents who groused about the unkempt intersection. It got the attention of Gov. Don Sundquist, who expressed public frustration and wondered whether to post signs saying the delay was not the state's fault.

For months, the disagreement pitted the state Department of Transportation against the state Commission of Indian Affairs, and, despite protests from the Indian commission, put the state attorney general's office in the position of insisting it could represent them both.

Native American defendants, who have had prayer vigils and made traditional tobacco offerings at the site in the past two years, decried the court's decision yesterday afternoon.

It comes on the heels of the governor's line-item budget veto that cut the annual $50,000 funding for the Tennessee Commission of Indian Affairs.

''We've got no chance in Tennessee anymore. We might as well throw our hands up like in the Trail of Tears. We give up again,'' said Grady Jones. He is one of 15 Native American residents who had been granted standing in the circuit court as ''interested persons'' able to challenge the graves' relocation.

Joe McCaleb, an attorney who represents 12 of the 15 individual defendants, said he must review the opinion and talk to his clients before deciding whether to appeal.

The appellate court's opinion said that Williamson County Circuit Judge Russ Heldman could have allowed the Native Americans to file friend-of-the-court briefings that argued their points, but that Heldman overstepped when he granted them ''interested persons'' standing.

''By their own admission, they own no legally recognized interest of any sort in the property at the intersection of Hillsboro Road and Old Hickory Boulevard where the three ancient graves were discovered,'' the opinion reads. ''Further, they have been unable, and in fact did not attempt, to prove that they are related by blood to any of the persons buried in these graves.''

The appellate court ruled that Heldman should not have disqualified the state attorney general's office from representing the Indian commission in court, even though it also was representing the Department of Transportation.

In the months while both sides waited for an appellate court ruling, the Indian commission has languished. It has no commissioners and, after losing its funding, its office was closed and its executive director laid off this month.

Executive Director Toye Heape has insisted he will continue working on this issue and other commission business as a volunteer. Heape yesterday called the court decision a ''gross misinterpretation'' of statutes that dictate the relocation of gravesites.

Reprinted under the Fair Use www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law.


Update: 2001 July

Information via Pat Cummins from Kevin Smith:

The Court of Appeals of Tennessee at Nashville ruling on the State of Tennessee ex rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle et al. is posted on the Tennessee Archaeology Net webpages at:
mtsu.edu/~kesmith/TNARCHNET/kellyfinal.html
PDF or WordPerfect format at: tsc.state.tn.us/OPINIONS/TCA/ca3qtr2001.htm

The appeal was lost by the Medicine Bird Black Bear White Eagle, et al. (the Tennessee Commission of Indian Affairs, its executive director, and fifteen individual Native Americans). This determination will be appealed to the state Supreme Court.

tsc.state.tn.us/OPINIONS/TCA/ca3qtr2001.htm
Full text of the appeal, either by download or PDF, may be had at the above address.

TN ex rel Commissioner of Transportation vs. Medicine Bird Black Bear White Eagle, et al - M1999-00300-COA-R10-CV

Williamson County - This appeal involves the efforts of the Tennessee Department of Transportation to widen the intersection of Hillsboro Road and Old Hickory Boulevard in Williamson County. After the discovery of two ancient graves near the intersection, the Department filed suit in the Chancery Court for Williamson County seeking permission to relocate the human remains found on the property and to discontinue the use of the property as a burial ground. Over the Department's objection, the trial court permitted the Tennessee Commission of Indian Affairs, its executive director, and fifteen individual Native Americans to intervene to oppose the relocation of the graves. After disqualifying the Attorney General and Reporter from representing the Commission, the trial court appointed two private lawyers to represent the Commission. We granted the Department's application for an extraordinary appeal to determine (1) whether the Commission, its executive director, and the individual Native Americans meet the qualifications in Tenn. Code Ann. § 46-4-102 (2000) to participate in these proceedings as "interested persons," (2) whether the Attorney General and Reporter should have been disqualified from representing the Commission and its executive director, and, if so, (3) whether the trial court has authority to appoint private counsel to represent the Commission and its executive director. We have determined that neither the Commission, nor its executive director, nor the fifteen individual Native Americans meet the statutory requirements to participate as "interested persons" in these proceedings and that denying "interested person" status to the individual Native Americans does not interfere with their free exercise rights or rights of conscience guaranteed by U. S. Const. amend. I and Tenn. Const. art. I, § 3. We have also determined that the trial court erred by disqualifying the Attorney General and Reporter from representing the Commission and its executive director and by appointing private attorneys to represent the Commission. Accordingly, we reverse and vacate the trial court's orders and remand the case for further proceedings consistent with this opinion.

Update: 2002 April 4 Judge tells Native American group road case is over



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