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Native Americas, Spring/Summer 2002--Volume 19 Number 1 & 2

Dispute Over Ancestral Remains Re-Opens Debate on Tribe's Authenticity

by Bill Weinberg

In September 2000, in the northwest corner of Vermont, near where the Missisquoi River meets Lake Champlain, Abenaki Indians repeatedly put their bodies on the line to halt traffic on a stretch of pavement not quite two miles long known as Monument Road. The blockades ended when a Vermont court ordered state authorities to reconsider home construction permits along the road, on lands which had already divulged numerous Abenaki remains in earlier real estate developments. After bitterly dividing the community, the dispute finally yielded an unprecedented accord between the Abenaki and local landowners and officials. But Vermont's state government has refused to recognize the accord-fearing that conferring legitimacy to the Abenaki as an indigenous nation would lead to federal recognition, and a slew of land claims. The long-held notion that the Abenaki are not "real" Indians-which their own white neighbors have finally begun to yield on-has been taken up by property owners and politicians across the state. With the locally-negotiated pact barred by the administration of Gov. Howard Dean, the issue is now pending on the in the state house.

The Monument Road follows the river northwest from Swanton, a little village which is seat of the 3,000-member Abenaki nation on the US side of the Canadian border. The road, which is dissected by the Swanton/Highgate town line, is named for a stone marker commemorating the first church in what is now Vermont-the St. Francis Mission to the Abenaki, established by French Jesuits at what was then the central Abenaki village of Missisquoi. Not surprisingly, the earth is rich with the artifacts of millennia of habitation-a heritage now contested in a struggle over ethnic and political identity, and who gets to define it.

Reburial, Blockade and Bureaucracy

Repatriation has been an issue for the Abenaki ever since the Monument Road was slated for suburbanization in the 1970s. In 1973, 88 sets of remains were documented by the University of Vermont at a site owned by the local Boucher family. The remains, found with copper bead work from as far away as Michigan, were determined to be over 10,000 years old. The remains were kept by UVM until 1989, when Abenaki Chief Homer St. Francis visited the university. St Francis, a man of legendary physical girth and courage, saw skullls being used as "doorstoppers and dust collectors," according to his daughter April Rushlow, who has succeeded him as chief. She recounts that her father threatened: "You either return the bones or I'll cremate them just where they are." The remains were transferred to the state Division of Historic Preservation in Montpelier. Under Abenaki pressure, the state negotiated with the landowners to buy the 2.2-acre Boucher property, for $325,000 in state funds and private donations. The house was moved down the road, and the bones re-interred in 1996. The land turned over to tribe. The first episode had closed.

The next was already in the making. In 1978, the Hideaway Paradise housing project was unveiled on a loop stretching north from the road. "The ad in the paper said Hideaway Paradise is on a 'quiet cul de sac,'" said then-Acting Chief Rushlow when I visited her at the tribal offices shortly after the blockades. "It ought to be quiet-it's a cemetery." As the Paradise Hideaway sub-divisions went up and families started moving in, there were rumors of residents keeping bones and arrowheads on their mantlepieces.

The battle was re-ignited in May 2000, when another construction site, this one south of the road, again turned up Abenaki remains. Acting Chief Rushlow told me she knew remains had been hit. "Every time they unearth some of our ancestors, people get sick," she said. She got on the phone and requested that a state archeologist examine the cellar hole that had just been dug on the site, owned by the local Bushey family. To back up the state examination, the Abenaki sent in John Moody, an ethno-historian and Darmouth graduate who works with the tribe. Moody saw bone fragments on the surface of ground. Soon April was back on the phone to state authorities.

The Vermont attorney general's office petitioned for a restraining order to halt construction, and on June 21 the one-tenth-acre site was bought by the state for an extremely generous $60,000. "We spent 15 weeks hand-sifting every bit of soil that came out of the cellar hole-five to seven days a week, all day," said Donna Moody, Abenaki Repatriation & Site Protection Coordinator. This work turned up over 5,000 small fragments, from an estimated 30 or 40 sets of human remains Acting Chief Rushlow told me the bones were at least from the 1700s, on the basis of coins and other artifacts found with them. The Abenaki allowed no carbon testing, but UVM physical anthropologist Deb Blum, who helped catalogue and reconstruct the remains, placed them at between 200 to 400 years old. The ritual reburial took place on November 4, 2000.

But development continued at Hideaway Paradise, where landowner Mike Jedware was developing two new sites. The Abenaki were already in state court attempting to halt construction at the Jedware sites. They charged that Jedware violated Vermont's environmental law, Act 250, by failing to report to the state archeologist after relics were found when cellar holes were dug that summer. The existence of relics-although not necessarily human remains-at the Jedware sites was only confirmed when the state sent out an archeologist in response to Abenaki protests in September. Those protests included the two-week road blockade starting September 18. Up to 40 Abenaki, including some who came from New Hampshire, Massachusetts and Maine, blocked the road throughout the daylight hours, and sometimes into the night.

With litigation pending, police did not try to break the blockades. In October, state superior court issued a temporary injunction halting construction at Paradise Hideaway, and the Abenaki called off the blockades. In November, the court deferred to the Vermont Environmental Board, which is was charged with "balancing the Abenaki's religious freedoms against the developer's property rights," according to Abenaki attorney Mike Straub. As the bureaucrats deliberated, Anglo and Abenaki residents at Swanton and Highgate were left to try to sort out a local solution-in a starkly divided community.

Suburbanization versus History

Acting Chief Rushlow drove me and a Burlington Free Press reporter out to the Monument Road when we visited one rainy morning in October 2000. She showed us where the blockade was held, near the historical marker at the Swanton end of the road. It reads:


The ancient Missisquoi/Mazipskoik Abenaki village was the region's focal point into the 1760s. In 1744, Jesuits built a cabin which served into 1790s as the first longterm Christian mission in Vermont. Speculators took much of the Abenaki land by 1798, but the Abenaki Nation of Missisquoi survived. In the 1860s, Swanton historian John Perry lamented the hasty destruction of the old village, noting its antiquity and great importance to all. Nearby, the Abenakis live quietly to this day.

"We're not so quiet right now," April chuckled. The backlash that the protests sparked among local residents was evident, even on the deserted road. Spray-painted graffiti on the asphault near the historical marker read: "ABENAKI SUCK TOTEM POLES."

Down the road a ways, atop a small rise, an Abenaki wood carving with a turtle, beaver, otter, wolf and eagle, representing local clans, overlooks a small stone monument placed by the state long ago. A plaque on the monument reads: Near this spot stood the first church erected in Vermont about 1700 by the Jesuit fathers to the glory of God almighty for the Mission of St. Francis Indians.

Standing on the little mound-which she says is among many ancient burial mounds in the area-April surveyed the surrounding suburban tracts. "We never signed any treaties and we never sold any land," she said. "So I'd like to know how all these people got title to it."

The Abenaki tribal offices in Swanton hold records substantiating their land rights in the area going back hundreds of years. Among the earliest documents are the King Phillip's War papers, recognizing lands ceded to the Abenaki by the English following the 1675 insurgency of Metacom, a Massasoit chief (dubbed King Phillip by the English) who united various tribes, including the Abenaki, to halt colonial encroachment onto their lands. The Abenaki were among the most intransigent warriors in Metacom's alliance, holding out after tribes to the south had surrendered.

One document on file at the tribal office is a 91-year lease to one James Robertson, who was granted timber exploitation rights on Abenaki lands in return for rent in the form of corn and yearly payments of "Spanish dollars" (gold). Another man named Hilliker had a similar lease. Robertson's lease lasted from 1765 to 1856.

However, in the chaos of the American Revolution and conflicting claims to Vermont's territory by New Hampshire and New York, surveyors with Ethan Allen's Green Mountain Boys-the real inheritors of the realm-divided Abenaki lands among Vermont's most prominent pioneer families. The Abeanki, whose power had been broken by massacre, disease, starvation and massive flight to Canada during the French & Indian War and Revolution, had little ability to resist.

"The governor says he doesn't want to give us state recognition because he's afraid of gambling," said April Rushlow. "He's afraid of land claims." She claims all of Vermont except Bennington County is Abenaki-as are parts of New Hampshire, Maine and Quebec.

Local Accord; State Intransigence

In the Spring of 2001, widely-attended hearings were held on the Monument Road controversy in Swanton's village municipal hall. At first contentious, the hearings resulted in establishment of a local Monument Road Working Committee-made up of Swanton and Highgate town officials, landowners and Abenaki Nation representatives. The new body officially convened in April.

That same month, on the 25th, an Abenaki burial site was uncovered in electrical excavation at Holderness, NH, and state authorities were alerted within hours. The State Archaeologist notified the Abenaki at Swanton. The remains were ceremonially re-interred before sunset that same day. New Hampshire, generally considered more conservative than its western neighbor, had proved more sensitive on the issue of Abenaki repatriation rights.

When no significant remains were found at Hideaway Paradise, construction continued. But the Monument Road Working Committee arrived at draft protocol agreeable to all parties. It called for a non-intrusive survey of development sites in the area, with ground-penetrating radar. There would be on-site monitoring for improvements to already-developed properties, such as cesspools or utility lines. State funds would be set aside to purchase the property if burial grounds were found-defined by more than three sets of remains.

The Working Committee met with state authorities in December to discuss official approval for the protocol-and were turned down. State Housing & Community Affairs Commissioner Greg Brown was explicit in stating that the Howard administration rejected the protocol because it legitimized the Abenaki Tribal Council-and could lay the groundwork for federal recognition.

"The administration is not opposed to the draft policy, except that it mentions the Abenaki Tribal Council," Brown told the meeting, according to the St. Albans Messenger. Jeff Benay, chair of the Governor's Commission on Native American Affairs, dissented from the state position at the meeting, citing Gov. Madeleine Kunin's 1991 executive order that established the commission. The order charged the Abenaki Tribal Council with appointing three commission members, and was never rescinded by the Dean administration.

"For a moment, put yourself in the shoes of an Abenaki community member looking at this executive order," Benay told Brown. "Then, 10 years later, if you heard something couldn't contain the words 'Abenaki Tribal Council,' wouldn't that be confusing for you?"

Replied Brown: "The original executive order was issued by a different governor at a different time who had different priorities, concerns and views of the world."

The state's equivocal position was summed up by Commissioner Brown to the Franklin County Courier: "We're just not in a position to accept the policy because we do not support federal recognition. But that doesn't mean that we don't want to deal with Native American affairs."

Chief Assistant Attorney General William Griffin told the Courier there was no definitive evidence the burial sites are Abenaki-or even Indian. Dartmouth College historian Colin Calloway, author of The Western Abenakis of Vermont, issued his own response: "That is quite a statement... [S]ince there are now several decades of ethno-historical and archaeological scholarship pointing to Abenaki occupation of the area through deep time, and since the archaeological community, to the best of my knowledge, is convinced that the sites are Abenaki, Mr. Griffin must be privy to contrary evidence we have all missed. He should be asked to produce it."

In December 2001, the burial protocol-including the reference to the Tribal Council-was written into a bill and introduced in the state house by Swanton legislator Kathy Lavoie, a Republican. Franklin County Sen. George Costes, also a Republican, introduced it in the senate. Entitled "An act relating to the discovery and management of Native American remains," it is still pending.

There are hopeful signs of reconciliation. In the early days of 2002, the Town of Swanton officially dedicated its town report to Chief Homer St. Francis, who had died in July. It was a gesture of respect, said Earl Fournier, head of the Selectboard, "to reinforce the good will with the Abenakis." On Jan. 9, a resolution of condolence for the late chief was passed on the state house floor in Montpelier. But the basic issue remained un-addressed.

Next Stop: The UN

Despite having signed peace treaties with England in the colonial era, the Abenaki have never had United States recognition, and had Vermont state recognition but briefly. This was between 1976, when Gov. Thomas Salmon officially conferred it, and '77, when Gov. Richard Snelling rescinded it. Commented Gov. Snelling to Yankee magazine: "When they told me the land was given to them by God, I told them what I couldn't find was where God registered the deed."

Under criticism, in 1983 Snelling made a non-binding proclamation of honorary recognition. This lacks force of law, but did lead to the establishment of the Governor's Commission on Native American Affairs, which includes members appointed by both the governor and the Abenaki.

A similar gain followed by quick reversal was the 1989 state court decision, State v. Elliot, recognizing the Abenaki's right to hunt year-round in Franklin, Grand Isle and Chittenden counties. The case began when Chief St. Francis launched a Missisquoi River Fish-In, a civil disobedience action challenging state law. Thirty were arrested for fishing out-of-season. Judge Joseph Wolchick dismissed the charges, ruling that the state had failed to prove that the Abenaki had ceded their lands. In 1992, the Wolchik decision was overturned by the Vermont Supreme Court, which ruled that extinguishment of aboriginal right "may be established by the increasing weight of history." Prosecutors said some 70 cases would be affected by the ruling, including charges of hunting without licenses and driving with Abenaki license plates.

In 1993, the state dismissed most of the charges and passed a bill granting the Abenaki "cultural recognition" by the state Historical Preservation Division. This bill encouraged preservation of sites and artifacts, and declared the first week of May "Abenaki Cultural Heritage Celebration Week." But some Abenaki criticized a policy of "selective recognition," which encouraged Abenaki-theme tourism without addressing fundamental rights.

In 1998, Joint Resolution 14, conferring limited state recognition, was introduced in the state house. The measure would allow the Abenaki to receive federal scholarships and programs as a minority, and allow their goods to be certified under the Indian Arts & Crafts Act. But Vermont's official position remained that the Abenaki had "ceased functioning as a tribe" in the 1700s, and that "regrouping" doesn't "meet the legal test"-as one Dean aid put it.

Another bill, introduced by Frederick Maslack of Poultney last year, would authorize the state health department to develop standards and procedures for DNA testing to identify Native Americans. This is especially problematic, as many Abenaki are descended from English war captives who were absorbed into the tribe centuries ago.

The Burlington Free Press, Vermont's biggest paper, editorialized against state recognition vociferously, calling it a "preamble to Federal Recognition" which would open a "hornet's nest" of land claims and large-scale casino development. The Abenaki, for their part, denied they had any ambitions to open casinos, and asserted that settlement of land claims would only mean monetary restitution and control over remains-not actual return of the lands.

In Quebec, where many Abenaki fled before English armies in the colonial era, the two Abenaki reserves on the St. Lawrence River have Ottawa's recognition: Odanak (or St. Francis), near Three Rivers, and Wolinak near Becancour.

Even today, the Abenaki are part of the Wobanaki Confederacy, an alliance of various Algonkian peoples which resisted the English in colonial times, including the Micmac and Penobscot. The Confederacy's territory stretched west to the north shore of Lake Huron, east to the Gulf of Maine and as far north as the Laurentians. The member nations of Wobanaki-which means Land of the Dawn-maintain formal links to this day. The Penobscot and Passamaquoddy have state recognition from Maine, and jointly received $81.5 million in restitution for lost lands by an act of Congress in 1980.

The Abenaki have only started to openly identify themselves as such again in the last generation. In the 1930s, the Abenaki were targeted for sterilization by a University of Vermont eugenics program, along with such other Vermont undesirables as "gypsies," "drunkards" and "river rats." But the Abenaki cultural revival, which gained ground under Chief Homer St. Francis in the late 1970s and early '80s, now animates the quest to recover ancestral remains, land rights and legal sovereignty. April Rushlow, now chief, isn't giving an inch. Her father started preparing a case to bring before the United Nations Working Group on Indigenous Rights, and she intends to follow through.

"My kid isn't going to go through this," says Chief April Rushlow. "I'll go where ever I have to go. If I have to take this to federal court, US Supreme Court, the United Nations, the World Court-I'm going."

Reprinting permissible with attribution.