And now:Ish <[EMAIL PROTECTED]> writes:
Date: Tue, 06 Jul 1999 13:39:31 -0500
From: Tusweca <[EMAIL PROTECTED]>
Subject: NAS win recognition in Tennessee, for now
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For the first time ever a Tennessee court ruled June 29th, 1999 that
Native American’s are "interested parties" in a termination and removal
suit regarding Native American graves. This is in regards to TDOT’s plan
to widen Hillsboro Road at Old Hickory Boulevard. There are two suits in
this case in that burials straddle Williamson and Davidson County lines.
Actions are being held separately in Chancery Court in both counties, in
and of itself a unique occurrence. However, the Tennessee State District
Attorney’s office has stepped in to contest the recognition of Native
Americans as "interested parties" by the Williamson County court. The
final hearing for the Williamson County case is set for July 22nd, 1999
and a hearing for the Davidson County case is set for hearing August
27th, 1999. In the meantime, a hearing for interlocutory appeal will be
heard in Williamson County Chancery court July 12, 1999 as well as a
motion for error in the court recognizing Native Americans as
"interested parties".
IN THE CHANCERY COURT FOR WILLIAMSON COUNTY, TENNESSEE AT FRANKLIN
STATE OF TENNESSEE, ON RELATION OF THE COMMISSIONER OF THE DEPARTMENT OF
TRANSPORTATION, FOR AND ON BEHALF OF SAID DEPARTMENT, Plaintiff,
Order of Court June 29th, 1999
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19. The testimony of these Native Americans constitutes the finding of
the Court concerning the religious beliefs and rights of conscience of
the Native American defendants as said beliefs and rights of conscience
apply to the burial grounds and remains at issue in this case. The same
must be respected even though the Department of Transportation sees a
need for a "slope" from a road to be built so as to interfere with
the remains.
20. The Native Americans listed as defendants above have a right in and
incident to the burial ground at issue in this case. It is a fundamental
right protected by two parts of Article I, Section 3 of the Declaration
of Rights of the Tennessee Constitution: "That all men have a natural
and indefeasible right to worship Almighty God according to the dictates
of their own conscience" and "that no human authority can, in any case
whatever, control or interfere with the rights of conscience.
21. Conscience is that moral sense in man which dictates to him right
and wrong." Harden v. State, 216 SW. 2d 708, 711 (Tenn.1948). The "moral
sense" of the Native Americans who are interested persons in this case
and all Native Americans who hold to traditional Native American
religious beliefs is that it is morally wrong and religiously offensive
for the remains of a deceased Native American to be disturbed at all by
"human authority." The State of Tennessee, the Department of
Transportation, its Commissioner, the Attorney General and Tennessee
Courts are "human authorities." "In any case whatever," these "human
authorities" cannot control or interfere with the rights of conscience
or religious beliefs of the Native Americans in this case by removing
the remains of the Native Americans from these graves or burial grounds
unless there is a legally recognized exception to the enforcement of
this fundamental right. That exception in Tennessee Law is called the
"compelling" or "substantial" state interest text.
22. In State ex rel. Swann v. Pack, 527 S.W. 2d 99, 107 (Tenn.1975), the
Tennessee Supreme Court held that Article I, Section 3 of the Tennessee
Constitution "contains a substantially stronger guaranty of religious
freedoms" than the federal constitution. The Court added: "The
government must view all citizens and all religious beliefs with
absolute and uncompromising neutrality. The day this Country ceases to
countenance irreligion or bizarre religions, it will cease to be free
for all religions. We must prefer none and disparage none." Id. The
Court then noted the compelling state interest exception to enforcement
of Article I, Section 3, at page 107 as follows:
This is not to say; however, that this or any other religious group has
an absolute and unbridled right to pursue any practice of its own
choosing. The right to believe is absolute; the right to act is subject
to reasonable regulation designed to protect a compelling state
interest.
23. It would violate the Native Americans' fundamental right under
Article I, Section 3 not to find them to have the required statutory
"right' to be "interested persons" under T.C.A. 464-102. At the final
hearing in this cause, in order for this Court to grant the relief
prayed for in Plaintiffs petition, the Plaintiff State of
Tennessee must carry its burden of proof under T.C.A. 46-4-101 and
464-104 and also demonstrate a compelling or substantial state interest
to remove the Native American remains in favor of a new slope
from the road, as that test is defined in State ex rel. Swann v. Pack,
527 S.W. 2d at 111:
We hold that under the First Amendment to the Constitution of the United
States and under the substantially stronger provisions of Article I,
Section 3 of the Constitution of Tennessee, a religious practice may be
limited, curtailed or restrained to the point of outright prohibition,
where it involves a clear and present danger to the interests of
society; but the action of the state must be reasonable and reasonably
dictated by the needs and demands of society as determined by the nature
of the activity as balanced against societal interests. Essentially,
therefore, the problem becomes one of a balancing of the interest
between religious freedom and the preservation of the health, safety and
morals of society. The scales must be weighed in favor of religious
freedom, and yet the balance is delicate.
The right to the free exercise of religion is not absolute and
unconditional. Nor is its sweep susceptible of discrete and concrete
compartmentalization. If is perforce, of necessity, a vague and
nebulous notion, defying the certainties of definition and the niceties
of description. At some point the freedom of the individual must wane
and the power, duty and interest of the state becomes compelling and
dominant. The right to the free exercise of religion is not absolute and
unconditional.
* * * * *
But, again, the scales are always weighted in favor of free exercise
and the state its interest must be compelling; it must be substantial;
the danger must be clear and present and so grave as to endanger
paramount public interest (Emphasis added).
24. If Plaintiff State of Tennessee does not carry its burden of proof
at trial to show a "compelling" or "substantial" state interest under
the Pack case in removing the remains of the Native Americans at issue,
the remains shall not be removed and the road must therefore be
"widened" around the remains or the slope constructed in some
accommodating manner not to disturb the remains.
25. Toye Heape as Executive Director of the Tennessee Commission on
Indian Affairs and the Commission on Indian Affairs are also "interested
persons" and shall be named defendants under T.C.A. 46-4-103 (b). Their
rights in and "incident to" the burial grounds at issue principally
arise from statute and administrative rules.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
How did the plaintiff, (State of Tennessee as defined by State District
attorney Moore) react?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Filed with the Court July 2nd, 1999
AMENDED MEMORANDUM OF LAW IN SUPPORT OF PETITIONER'S MOTION TO
RECONSIDER
3. Petitioner believes that the court's holding will affect all land in
Williamson County which may contain ancient remains and artifacts. The
holding would delay if not halt development of property which
landowners' would otherwise be able to develop.
In the case at bar, as in Bailey, there is no statutory provision
authorizing suit by groups such as the Commission on Indian Affairs or
Eastern Band of Cherokees. As such, those groups should not be permitted
to intervene in this matter.
"The only rights the Native Americans have with regard to the excavation
of burial grounds are the rights to oversee the excavation and
subsequent reinterment process as stated in §§ 11-6-116 and 11-6-119.
Petitioner believes that this right to oversee is the only right that
Native Americans have regarding burial WHEREFORE, movant respectfully
requests the court to permit Petitioner interlocutory appeal of the
court's previous order declaring as "interested persons" the Tennessee
Commission on Indian Affairs and the fifteen (15) Native Americans
appearing before the Court on June 14,1999 grounds. Native Americans
have absolutely no rights under §§ 11-6-101 et seq. to contest the
excavation of burial grounds and the reinterment of the remains found
therein."
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
MOTION 1
PETITIONER'S AMENDED APPLICATION FOR INTERLOCUTORY APPEAL BY PERMISSION
WHEREFORE, movant respectfully requests the court to permit Petitioner
interlocutory appeal of the court's previous order declaring as
"interested persons" the Tennessee Commission on Indian Affairs and the
fifteen (15) Native Americans appearing before the Court on June
14,1999.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
MOTION 2
AMENDED PETITIONER'S MOTION TO RECONSIDER
1. The Court erred in finding that the Tennessee Commission of Indian
Affairs and its executive director Toye Heape are "interested persons"
as defined by Tenn. Code Ann. § 46-4-102.
2. The Court erred in finding that Medicine Bird Black Bear White Eagle,
Albert Bender, Leela Vaughn, Gilbert Cupp, Roger Clinch, Dan Kirby,
Grady Jones, Michael Simms, Norman Totten, Marion Dunn, Edna Faye, Dale
Mitchell, Robin Lockwood, Anita Stevens and Shelia Totten are
"interested persons" as defined by Tenn, Code Ann. § 46-4-102.
WHEREFORE, movant respectfully requests the Court to vacate its
judgement by denying "interested persons" status as defined by Tenn.
Code Ann. § 46-4-102 to the Tennessee Commission of Indian Affairs and
its executive director Toye Heape and the fifteen Native Americans
appearing before the Court on June 14, 1999, who asserted that they are
"interested persons" as defined by Tenn. Code Ann. § 46-4-102.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
The ‘State of Tennessee’ has taken great exception to the court finding
that Native Americans, tribes, commissions, organizations, etc. are
interested parties in burial termination issues. The two above motions
are to be heard July 12nd at 9am, CST. The excerpts above are of motions
and rebuttals of the Tennessee DAS office in regards to the order of the
court dated 6/29/99. Please, all who can attend do.
Tusweca
Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html
doctrine of international copyright law.
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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