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 To: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED] Reply-to: [EMAIL PROTECTED] Message-id: <[EMAIL PROTECTED]> MIME-version: 1.0 X-Mailer: Mozilla 3.04 (Win95; I) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: 8BIT 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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&