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with Section 106 Section
106 in Action Archive
of Prominent Section 106 Cases Tennessee: Improvements to State
Route 73 (US 321)
Improvements to State Route 73
(US 321), Townsend
Agency: Federal Highway
Criterion for ACHP Involvement:
The project presented issues of concern to
the Eastern Band of the Cherokee Indians, the Chickasaw Nation and
the Seminole Nation of Oklahoma (Criterion 4), and evidenced procedural
problems (Criterion 3).
On April 11, 2001, ACHP executed a Memorandum of Agreement (MOA)
for widening of State Route 73 (US 321) in Townsend, Tennessee. Other
signatories to the MOA are the Federal Highway Administration (FHWA),
the Tennessee State Historic Preservation Officer (SHPO), the Eastern
Band of the Cherokee Indians (EBCI), the Tennessee Commission on Indian
Affairs, the Tennessee Division on Archeology, the Tennessee Department
of Transportation (TDOT), and the Chickasaw Nation.
Mitigation measures in the MOA include completion of the identification
of burials at the archeological sites, avoidance of further disturbance
to these sites, and protection for burials which remain in place through
the use of a concrete protective cap. For any burials to be relocated,
the EBCI may conduct ceremonies and other treatments in accordance with
their cultural beliefs.
The MOA also provides for public interpretation of the sites and TDOT
assistance with design and construction of a Native American cultural
center and display at the Townsend visitors center. To address long-term
effects, the MOA calls for a meeting between tribal, county, and local
officials to identify protection strategies which can be incorporated
into future development of the area.
Several years ago, TDOT requested funds from FHWA to widen SR 73 (US
321). In May 1999, Section 106 review was completed when ACHP concurred
with FHWAs determination that the project would have no adverse
effect on the Kinzel Springs Church, Apple Barn, Pony Ride, and Gas Company
The archeological sites had been determined to be eligible for listing
in the National Register of Historic Places because of their potential
to yield important information about the Native Americans who created
them. While they could yield important data, the sites were not, however,
considered notably significant for their associations with the broad patterns
of events in Native American history.
In reaching these decisions, FHWA did not consult with the EBCI or any
other Indian tribe. Had it done so, FHWA would have learned that these
archeological sites represent a portion of the historically documented
Tuckaleechee towns, a northern extension of the Overhill Cherokee settlements.
Tribal traditionalists refer to these settlements as the former western
gate of the Nation and their inhabitants as gatekeepers.
As such, the places identified by these sites are part of a traditional
landscape that documents the history and identity of the Cherokee and
is affirmed by the presence of archeological contexts and content.
After being contacted by TDOT in May 1999, the EBCI visited the project
area in June and, despite archeological reports to the contrary, maintained
that burials were present at the sites. As predicted by the EBCI, FHWA
identified its first burial at the sites during data recovery in November
1999, with more than 50 burial locations having been identified to date.
To address these discoveries, FHWA drafted an MOA for review by all of
the consulting parties in early November 2000.
The project generated a great deal of interest and controversy among
the EBCI, as well as the Chickasaw Nation and the Seminole Nation of Oklahoma,
both of whom were also interested in the sites. Their concerns about the
project and the treatment of burials were set forth in a resolution adopted
at the January 2001 meeting of the United Southern and Eastern Tribes.
The EBCI, concerned about the treatment of these properties of religious
and cultural significance to the tribe and frustrated by the substantial
delay in reaching resolution, contacted ACHP. With ACHP participation,
the terms of the draft MOA evolved substantially during an on-site consultation
meeting held in March 2001 and an April 2001 meeting of all consulting
parties (with the exception of the Seminole Nation of Oklahoma) held on
the EBCI reservation.
Staff contact: Laura Dean
June 6, 2002
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