Wal-Mart / Lowe's Shopping Center Destroys Native American Cemetery
The removal of Native American burials to clear the way for construction of a Wal-Mart / Lowe's supercenter on Charlotte Pike in Nashville began on February 25, 1998. This began the destruction of a major Native historical site. When the excavations were completed in August, 1998, the remains of 154 individuals had been taken from their graves.
The developer of this project, JDN Realty of Atlanta, was aware of the presence of the Indian cemetery before purchasing the property, but proceeded with their plans anyway. They pushed a zoning change that would be required to build the center on this property through Nashville's planning commission and the city council, despite intense opposition from the Indian community and residents of the neighborhood. This was accomplished with the assistance of Councilman Eric Crafton, who supposedly represented the district where the property is located. Crafton opposed the development at first, then changed his mind and decided to support it, convincing the city council to approve the necessary zoning change.
JDN filed a "termination of cemetery" suit in Davidson County Chancery Court that October, asking for permission to legally remove the burials from the cemetery (JDN Requests Removal of Burials). Don Yahola, at the time a Native American representative on Tennessee's Archaeological Advisory Council and then president of the Alliance for Native American Indian Rights, filed a motion with the court asking to be admitted into the suit as an "interested person" in order to object to the termination of the cemetery.
Tennessee state law defines "interested persons" in a termination of cemetery suit as "any and all persons who have any right or easement or other right in, or incident or appurtenant to, a burial ground ..." (Tennesse Code Annotated (TCA) 46-4-102). Mr. Yahola, as a Native American reresentative on the Archaeological Advisory Council, had certain rights and interests in Native American cemeteries which are defined in Tennessee Department of Environment and Conservation (TDEC) regulations and state law. TDEC Rule 0400-9-1-.04 requires that the Native members of the AAC be notified in writing when a termination suit has been filed for a Native cemetery. State law stipulates that the Native members of the AAC "shall have a right to be present on the site at all times excavation or treatment of such remains is taking place" (TCA 11-6-116). Note the use of the word "right" in the preceding sentence.
If the law defines an "interested person" as "any and all persons who have any right" in a burial ground, and the law gave Mr. Yahola, as a member of the AAC, "a right to be present" when an Indian cemetery is excavated, it is obvious that Mr. Yahola was an "interested person" by definition. Incredibly, Chancellor Carol McCoy ruled that Mr. Yahola was not an "interested person". This decision indicates that Chancellor McCoy did not consider Mr. Yahola, a Native American, to be a person. This was blatant racism at its worst.
Chancellor McCoy's decision not to admit Don Yahola into the suit left no doubt that the Native cemetery would be terminated, since there would be no one allowed to speak up in court to contest JDN's contention that the cemetery was abandoned, neglected, and unsuitable as a resting place for the dead. After the hearing at which JDN's attorney made their case for the cemetery's destruction, Chancellor McCoy did sign the termination order, allowing the removal of the burials to proceed.
UPDATE!! 2/13/07 All removals have been reburied.
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