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| Sites in Need of ProtectionKellytown, Tennessee
http://www.tennessean.com/williamsonam/archives/02/04/15513564.shtml?Element_ID=15513564
The Tennessean, Tuesday, 04/02/02
Judge tells Native American group road case is over
By PEGGY SHAW Staff Writer
FRANKLIN - An attempt to stop the state from paving over Native American graves in a road-widening project on Hillsboro Pike near Old Hickory Boulevard failed in court yesterday, but the controversy probably isn't over.
Chancery Court Judge Russ Heldman denied two motions related to the case, saying that his court no longer had jurisdiction in the matter.
Motions filed by attorney Joe Johnston on behalf of four individuals and the Alliance for Native American Indian Rights in Tennessee Inc. were arguments - based on his clients' constitutional rights to equal protection and substantive due process - against the state moving six ancient Native American graves at the intersection.
The Tennessee Department of Transportation, however, withdrew its petition to move the graves late last month, deciding instead to encase them in concrete. As a result, Heldman said he had no authority to make a ruling in a case challenging removal.
Cultural representatives from the Eastern Band of the Cherokee in North Carolina and the Chickasaw Nation in Oklahoma - considered to be the most likely descendants of the ancient people - agreed last month to accept the encapsulation of the graves rather than have them relocated.
Johnston said he would confer with his clients and decide what steps to take next. He also planned to file similar motions this week in a Davidson County companion case, since the burial area has portions in both Davidson and Williamson counties.
Heldman deliberated several minutes before making his ruling, frowning and at one point sighing as he leafed through the paperwork. He argued that in 1999, when the legal battles began, Native Americans agreed that the graves should not be moved, and that at least one Native American, Lou White Eagle, had testified that paving over the graves would be acceptable.
White Eagle said during yesterday's hearing, however, that at the time he had never heard of this procedure and that ''with all the traffic there, it would eventually break the concrete and desecrate the remains.''
More than 30,000 people go through the Old Hickory-Hillsboro intersection every day.
White Eagle, a Nashville resident and spiritual advisor to the Native American Spiritual Alliance, also said he wanted the road to be rerouted and feared that yesterday's ruling would give the state permission to pave over any Native American gravesites. ''What I'm concerned about today is that when they run into other ancestors, they'll just put cement over them and we'll never know about them.''
A Cheyenne, White Eagle believes that part of a person's spirit remains with the body after he or she is buried ''until everything is gone.'' A service to help move the deceased completely into the spirit world is not possible, he added. ''There is no reburial ceremony. There is only honor and respect.''
Other tribes, such as the Cherokee and Chickasaw, have different beliefs, but those tribes worked together on a similar case in Blount County last year in which graves were capped and left underneath a road project.
It is not known exactly which tribe descended from the people whose graves were found here. State archaeologist Nick Fielder has said the remains are about 800 years old.
Legal battles over land at the intersection began three years ago when TDOT, planning to widen the intersection and add turning lanes, discovered the graves and filed a petition for termination of the land's use as a cemetery - basically, a request to move the graves. Local Native Americans protested and filed suit both in Williamson and Davidson counties, requesting that the road be rerouted.
A date for capping the ''stone box'' burials has not been set, said Fielder. Surveying was done last week, and core drilling for the roadbed project was scheduled to begin today.
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