State v Medicine Bird Black Bear White Eagle

• Decision Date: 11 July 2001
• Docket Number: 99-00300
• Citation: 63 S.W.3d 734
• Parties: STATE OF TENNESSEE ex rel. COMMISSIONER OF TRANSPORTATION v. MEDICINE BIRD BLACK BEAR WHITE EAGLE, et al.IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
• Court: Tennessee Court of Appeals

STATE OF TENNESSEE ex rel. COMMISSIONER OF TRANSPORTATION v MEDICINE BIRD BLACK BEAR WHITE EAGLE, et al.

No. M1999-00300-COA-R10-CV

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

February 1, 2000 Session

Filed July 11, 2001

Appeal from the Chancery Court for Williamson County, No. II-26212

Russ Heldman, Judge

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.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Chancery Court Reversed

William C. Koch, Jr., J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S. and William B. Cain, J., joined.

Paul G. Summers, Attorney General and Reporter, and Michael Moore, Solicitor General, for the appellant, State of Tennessee.

Virginia Lee Story, Franklin, Tennessee and John E. Herbison, Nashville, Tennessee, for the Tennessee Commission of Indian Affairs and Toye Heape, Executive Director of the Tennessee Commission of Indian Affairs.

Joe W. McCaleb, Hendersonville, Tennessee, for the appellees, Medicine Bird Black Bear White Eagle, Albert Bender, Leela Vaughn, Rogers Clinch, Grady Jones, Michael Simms, Norman Totten, Sheila Totten, Edna Faye, Dale Mitchell, Robin Lockwood, and Anita Stevens.

Joseph H. Johnston, Nashville, Tennessee, for the appellees, Gilbert Cupp, Dan Kirby, and Marion Dunn.

OPINION

Hillsboro Road runs essentially north and south and connects the cities of Nashville and Franklin. Like many roads, it began as a pathway used by bears and buffalo looking for salt licks. Later, it became a main artery for Native Americans¹ in the area. Following statehood, the Tennessee General Assembly chartered it as a toll road. Eventually, Hillsboro Road was designated as a public road in 1902.² It has continued to be one of the principal links between Nashville and Franklin even after the construction of the interstate highways in Middle Tennessee.

During the last several decades of the twentieth century, Hillsboro Road became increasingly congested because of the significant population growth south of Nashville. By 1995, the intersection of Hillsboro Road and Old Hickory Boulevard was operating above capacity at peak hours. Accordingly, the Tennessee Department of Transportation began preparing plans to improve the intersection and also began acquiring the property needed for the planned improvements. One of these tracts, owned by the Kelly family, is located on the southeast side of Hillsboro Road where it intersects Old Hickory Boulevard near the boundary between Davidson and Williamson Counties.

The area in the general vicinity of the project was known to have Native American artifacts. Accordingly, the Department began a preliminary archeological examination of the Kelly tract even before the condemnation proceedings were completed. In October 1998, an archeological crew discovered several Native American artifacts of varying ages in the southeast corner of the proposed right-of-way. In late January 1999, after construction had commenced, the Department's archeological crew discovered an unmarked, ancient Native American grave in a portion of the project located in Williamson County. The Department's crew left the grave undisturbed and, as required by law, notified the State Archeologist of its discovery.

Shortly after the discovery of the first grave, a second unmarked, ancient Native American grave was discovered on the Williamson County portion of the project. This discovery prompted a meeting at the construction site to determine how to proceed. The participants in this meeting included representatives of the Department, representatives of the contractor and its subcontractors, and Toye Heape, the executive director of the Tennessee Commission of Indian Affairs ("Commission"). The representatives of the Department and the contractor determined that construction of the improvements could proceed because it would not disturb the two graves.

During the next month, the Department completed its acquisition of the Kelly tract.³ The Department's surveyors also determined that the grave sites were actually five to six feet nearer to the proposed roadway than had been previously thought. The surveyors and engineers also concluded that even though the graves would not be paved over when Hillsboro Road was widened, they would be disturbed by the necessary construction of a slope next to the road and the installation of utilities and a water drainage pipe. On May 4, 1999, the Department filed a petition in the Chancery Court for Williamson County seeking to relocate the two graves and to terminate the use of the property as a cemetery in accordance with Tenn. Code Ann. §§ 46-4-101 to -104 (2000). In late May 1999, a third grave was discovered on a portion of the Kelly tract in Davidson County.⁴

The trial court initially took up the Department's petition on June 2, 1999, but continued the hearing after Mr. Heape suggested that notice of the proceedings should be sent to fifty other Native American organizations. The Department provided the additional notice as directed by the trial court. When the hearing reconvened on June 14, 1999, the Commission and Mr. Heape, acting in his official capacity as the Commission's executive director, and fifteen individual Native Americans requested permission to join the suit as "interested persons" under Tenn. Code Ann. § 46-4-102. On June 17, 1999, the trial court entered an order, over the Department's objection, adding the Commission, Mr. Heape, and the fifteen individual Native Americans as "interested persons." The trial court also concluded that a "conflict of interest" existed between the Department and the Commission and set a hearing for June 25, 1999, to determine "whether the Attorney General can and should proceed as counsel in this case and whether independent counsel should and can be provided any state individual and or agency by appointment of the Governor, the Tennessee Supreme Court or otherwise."

Within days after the entry of the June 17, 1999 order, the Department filed a motion requesting reconsideration of the trial court's conclusion that the Commission and Mr. Heape, as well as the fifteen individual Native Americans, were "interested persons" under Tenn. Code Ann. § 46-4-102. The Department also filed an application for permission to pursue a Tenn. R. App. P. 9 interlocutory appeal regarding the decision to accord "interested person" status to sixteen of the seventeen persons or entities included in the trial court's decision.⁵ The trial court declined to act on the Department's motion or application at a June 28, 1999 hearing, but on June 29, 1999, entered a "supplemental order" expressly reaffirming the conclusions in its June 17, 1999 order that the Commission, Mr. Heape, and the fifteen individual Native Americans were "interested persons" for the purpose of Tenn. Code Ann. § 46-4-102.

On June 30, 1999, the trial court entered another order addressing the perceived "conflict of interest" between the Department and the Commission. Relying on its conclusion that the Commission and Mr. Heape were "interested persons" for the purpose of Tenn. Code Ann. § 46-4-102, the trial court determined that they were entitled to "independent, non-conflicted legal advice" and that the Office of the Attorney General could not provide this advice because it was statutorily obligated to represent the Department. Accordingly, the trial court appointed Virginia Lee Story, a lawyer practicing in Franklin, as "'attorney general pro tem' or 'outside counsel'" to represent the Commission and Mr. Heape in this proceeding.⁶

On July 20, 1999, the Department filed an application for a Tenn. R. App. P. 10 extraordinary appeal with this court. On July 21, 1999, this court entered an order directing the Commission, Mr. Heape, and the fifteen individual Native Americans to respond to the...