UNQUIET EARTH IN ABENAKI COUNTRY
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:
MISSISQUOI VILLAGE AND MISSION
Swanton/Highgate
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."
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