Suit On Native American Graves In Highway Construction Dismissed

A Tennessee suit involving the appropriate treatment of Native American graves discovered during highway construction was dismissed on the basis of mootness and res judicata on Friday. In re: Order To Encapsulate Native American Gravesites, (TN Ct. App., Aug. 23, 2007) [WordPerfect document], was one in a series of suits against the Tennessee Department of Transportation. Initially the Department proposed to relocate remains found in three Native American grave sites. A Native American group and three individuals objected to this proposal, arguing that disturbing the graves would violate their rights of conscience and free exercise of religion. While litigation was pending, the Department decided instead to re-inter the remains in place and encapsulate the graves in concrete. This too was challenged in litigation, but while the lawsuit seeking an injunction was pending, the construction was completed. So the court dismissed the claims as moot. This suit was then filed seeking declaratory relief, instead of the injunction that was sought in the first litigation. The Court of Appeals agreed with the trial court that this suit is "Plaintiffs' second bite at the very same apple."