In June of 1999, a very significant court case began that helped to open the doors of courtrooms to the Alliance for Native American Indian Rights and at least 16 Native Americans from all over Middle Tennessee. The case began with the Tennessee Department of Transportation’s plans to widen a portion of State Highway 431, better known as Hillsboro Road, running between Nashville and Franklin, Tennessee.

This portion of Hillsboro Road on the county line of Williamson and Davidson Counties, had long been known to the State Division of Archaeology to contain Indian burials. It was no surprise when the TDOT announced its plans to relocate six Mississippian period stone box graves (at least 800 years old) that were in the path of the proposed widened roadway. TDOT first planned to relocate those burials on the Williamson County side, and then request permission to relocate the Davidson County burials. When the Attorney General’s office filed their petition on behalf of TDOT, Chancellor Russ Heldman insisted that the Native American Community be contacted and allowed to participate in the proceedings. His reasoning: HIS interpretation of the law that modern Native Americans are the living descendants of these ancient Indian people with a religious responsibility to protect the burial grounds of their ancestors.

For the first time in Tennessee history, Native Americans were acknowledged by a court of law as the living relatives of our ancient ancestors. The Tennessee Attorney General’s office quickly challenged Chancellor Heldman's decision to the State Appellate Court. Their claim is that modern Native Americans have no proof of our ancestry, and that a direct blood relationship must exist between the deceased and a living relative before anyone can be named as an “interested person” in a cemetery termination hearing according to the state cemetery termination statutes.

This began a series of lawsuits that led to an injunction against any construction activity on the site for over two years until a series of questions could be answered by the courts in regard to the standing of Native Americans in these type of cases. The courts upheld the written language of the law that states that there must be a blood relationship to the deceased to be named as an interested person in a termination hearing.

Our next attempt at justice was on grounds of religious rights violations, a constitutional issue. That too, was ruled against. Judge William Koch Jr. did rule in our favor in regard to our standing as “Amicus” or “Friends of the Court,” in Native American burial site termination hearings. The Judge ruled that because we, as Native Americans, have a relationship as descendants, we have a right to voice our concerns over the disinterment of Native American Indians. The decision to allow us to file “friends of the court” briefs is still at the individual judge’s discretion, but with compelling reason we have successfully filed a “friends of the court” brief in another case here in Nashville Tennessee, in June of 2003. Our filing was the first of its kind to be accepted by a Tennessee judge in relation to a termination case involving Native Americans.

After numerous court cases, we feel that we have been at least partially successful in that we held our ground, and began to question the constitutionality of Tennessee state cemetery statutes. 46-4-101 through 46-4-103 (Termination of use of land as a cemetery,) to the point that TDOT withdrew its request to terminate the Kelly Town burial ground. That however has led to yet another chapter in our struggle to stop the desecration of our ancestors graves, TDOT’s decision to use concrete burial site encapsulation. TDOT thought that since the graves were to remain in the ground that they would simply encase them in concrete and build the road over them. So far this has been done in two cases. One in Townsend, Tennessee and the other at The Kelly Town site. This has been accomplished without any legal authority, or legislative consent, therefore we feel it is an illegal act on behalf of the state. We seriously doubt that TDOT would ever consider paving over the graves of non-Indians. There again, why would they want to? They have nothing to try and prove to non–Indians.

The Alliance has most recently filed suit against the Tennessee Department of Transportation over the encapsulation issue and we currently await a decision by the Appellate Court as to whether or not this act is unconstitutional and discriminatory against Native Americans. Burial site encapsulation has only been carried out on Native American burial sites. No other graves have ever been treated in such a manner. This raises concern over discrimination and again, the constitutionality of the practice. These photographs depict the burial site encapsulation of the Kelly Town site. It is our hope that this sacred place will not have been destroyed without helping to bring an end to this type of sacrilegious treatment.

Close Window