SWANTON, Vt. ? Eleven months after going to court over desecration of a historic burial site, the Abenaki Nation of Missisquoi won a go-ahead on a suit against the building developer and the state official in charge of preservation.
Superior Court Judge Matthew Katz of Washington County refused to dismiss two of the tribe’s complaints against developer Michael Jedware and State Commissioner of Housing and Community Affairs Greg Brown.
‘The judge has said the tribe has alleged sufficient facts to go into court,’ the tribe’s attorney Michael J. Straub said. ‘Depending on the decision of the parties of the case, there will be depositions of evidence.’
The Sept. 4 ruling also gives the tribe leverage for an out-of-court settlement, although Straub declined to speculate any further. The suit originated with Abenaki attempts to block home building on Monument Road between Swanton and Highgate.
Excavation on one lot in May 2000 uncovered 30 sets of remains. Archaeologists and historians estimated that as many as 80,000 Abenaki ancestors might be buried in a 120-acre area of traditional campsites and a historic Jesuit mission.
Acting Chief April Rushlow led a tribal effort to preserve the remains and obtain court injunctions against further building, although the courts declined to block two homes under construction.
Rushlow said the two houses were completed this summer and other excavation went forward. Although no remains turned up in that work, she said construction in a neighboring town exposed two bodies.
She said property owners were refusing to allow Abenaki on the site to examine the remains and the state archeologist had declined their request to intervene. ‘We’ll be taking that to court.’
Rushlow said the nation’s relations with Swanton and Highgate officials and Monument Road residents had improved markedly, that they met to work out guidelines for responding to discovery of remains. She said the committee planned to present them to state legislators as the basis of new state law, ‘so people will know what to do with Native American remains.’
Rushlow noted that Vermont already has laws against gravesite desecration. The nation’s suit against Jedware and Brown invoked a statute giving certain parties a civil cause of action ‘where another party injures ‘a grave, tomb or burial site in which the body of a deceased person is interred.”
Judge Katz wrote that, ‘The property is undisputed to be located amidst multiple burial sites in what plaintiffs call a sort of continuous burial area. The plaintiffs have plead the probability of the existence of human remains on the disputed property and have also plead the existence of a chert flake which may further substantiate their theory.
‘Plaintiffs will need further evidence of the existence of human remains to survive summary judgment but the immediate allegations are sufficient to survive a motion to dismiss.’
The Missisquoi band also is involved in protecting remains uncovered on Squam Lake in New Hampshire during expansion of the Squam Lake Science Center.
Rushlow said that Donna Moody, the nation’s repatriations officer, was working with Gary Hume, New Hampshire state archeologist, on an alternative plan for the expansion that would preserve the burial ground.
‘Hume basically sees the Abenaki side of it,’ Rushlow said. ‘He’s very cooperative.’
Abenaki residents of New Hampshire, both members of the Missisquoi Nation and unaffiliated, have been protesting at Squam Lake for several weeks. ‘We’re not going to bend over backward on this,’ Rushlow said. ‘The Abenaki are through bending.’
Rushlow said she had become chief for life after the death of her father Homer St. Francis in July. She has served as acting chief for several years, during her father’s protracted illness. St. Francis, claiming descent from the famous 18th century Chief Graylocks, revived the Abenaki presence in northern New England during the 1970s and ’80s by what tribal members call his uncompromising insistence on the nation’s sovereignty. The tribe’s petition for federal recognition is still pending, however.
