State Ex Rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle

OPINION

delivered the opinion of the court,

This appeal involves the efforts of the Tennessee Department of Transportation to widen the intersection of Hillsboro Road and Old Hickory Boulevard in Williamson County. After the discovery of two ancient graves near the intersection, the Department filed suit in the Chancery Court for Williamson County seeking permission to relocate the human remains found on the property and to discontinue the use of the property as a burial ground. Over the Department’s objection, the trial court permitted the Tennessee Commission of Indian Affairs, its executive director, and fifteen individual Native Americans to intervene to oppose the relocation of the graves. After disqualifying the Attorney General and Reporter from representing the Commission, the trial court appointed two private lawyers to represent the Commission. We granted the Department’s application for an extraordinary appeal to determine (1) whether the Commission, its executive director, and the individual Native Americans meet the qualifications in Tenn. Code Ann. § 46-4-102 (2000) to participate in these proceedings as “interested persons,” (2) whether the Attorney General and Reporter should have been disqualified from representing the Commission and its executive director, and, if so, (3) whether the trial court has authority to appoint private counsel to represent the Commission and its executive director. We have determined that neither the Commission, nor its executive director, nor the fifteen individual Native Americans meet the statutory requirements to participate as “interested persons” in these proceedings and that denying “interested person” status to the individual Native Americans does not interfere with their free exercise rights or rights of conscience guaranteed by U.S. Const, amend. I and Tenn. Const, art. I, § 3. We have also determined that the trial court erred by disqualifying the Attorney General and Reporter from representing the Commission and its executive director and by appointing private attorneys to represent the Commission. Accordingly, we reverse and vacate the trial court’s orders and remand the case for further proceedings consistent with this opinion.

Hillsboro Road runs essentially north and south and connects the cities of Nashville and Franklin. Like many roads, it began as a pathway used by bears and buffalo looking for salt licks. Later, it became a main artery for Native Americans 1 in the area. Following statehood, the Tennessee General Assembly chartered it as a toll road. Eventually, Hills-boro Road was designated as a public road *743 in 1902. 2 It has continued to be one of the principal links between Nashville and Franklin even after the construction of the interstate highways in Middle Tennessee.

During the last several decades of the twentieth century, Hillsboro Road became increasingly congested because of the significant population growth south of Nashville. By 1995, the intersection of Hills-boro Road and Old Hickory Boulevard was operating above capacity at peak hours. Accordingly, the Tennessee Department of Transportation began preparing plans to improve the intersection and also began acquiring the property needed for the planned improvements. One of these tracts, owned by the Kelly family, is located on the southeast side of Hillsboro Road where it intersects Old Hickory Boulevard near the boundary between Davidson and Williamson Counties.

The area in the general vicinity of the project was known to have Native American artifacts. Accordingly, the Department began a preliminary archeological examination of the Kelly tract even before the condemnation proceedings were completed. In October 1998, an archeological crew discovered several Native American artifacts of varying ages in the southeast corner of the proposed right-of-way. In late January 1999, after construction had commenced, the Department’s archeological crew discovered an unmarked, ancient Native American grave in a portion of the project located in Williamson County. The Department’s crew left the grave undisturbed and, as required by law, notified the State Archeologist of its discovery.

Shortly after the discovery of the first grave, a second unmarked, ancient Native American grave was discovered on the Williamson County portion of the project. This discovery prompted a meeting at the construction site to determine how to proceed. The participants in this meeting included representatives of the Department, representatives of the contractor and its subcontractors, and Toye Heape, the executive director of the Tennessee Commission of Indian Affairs (“Commission”). The representatives of the Department and the contractor determined that construction of the improvements could proceed because it would not disturb the two graves.

During the next month, the Department completed its acquisition of the Kelly tract. 3 The Department’s surveyors also determined that the grave sites were actually five to six feet nearer to the proposed roadway than had been previously thought. The surveyors and engineers also concluded that even though the graves would not be paved over when Hillsboro Road was widened, they would be disturbed by the necessary construction of a slope next to the road and the installation of utilities and a water drainage pipe. On May 4, 1999, the Department filed a petition in the Chancery Court for Williamson County seeking to relocate the two graves and to terminate the use of the property as a cemetery in accordance with Tenn.Code Ann. §§ 46^4-101 to -104 (2000). In late May 1999, a third grave was discovered on a portion of the Kelly tract in Davidson County. 4

*744 The trial court initially took up the Department’s petition on June 2, 1999, but continued the hearing after Mr. Heape suggested that notice of the proceedings should be sent to fifty other Native American organizations. The Department provided the additional notice as directed by the trial court. When the hearing reconvened on June 14, 1999, the Commission and Mr. Heape, acting in his official capacity as the Commission’s executive director, and fifteen individual Native Americans requested permission to join the suit as “interested persons” under Tenn.Code Ann. § 46-4-102. On June 17, 1999, the trial court entered an order, over the Department’s objection, adding the Commission, Mr. Heape, and the fifteen individual Native Americans as “interested persons.” The trial court also concluded that a “conflict of interest” existed between the Department and the Commission and set a hearing for June 25, 1999, to determine “whether the Attorney General can and should proceed as counsel in this case and whether independent counsel should and can be provided any state individual and or agency by appointment of the Governor, the Tennessee Supreme Court or otherwise.”

Within days after the entry of the June 17, 1999 order, the Department filed a motion requesting reconsideration of the trial court’s conclusion that the Commission and Mr. Heape, as well as the fifteen individual Native Americans, were “interested persons” under Tenn.Code Ann. § 46A1-102. The Department also filed an application for permission to pursue a Tenn.R.App.P. 9 interlocutory appeal regarding the decision to accord “interested person” status to sixteen of the seventeen persons or entities included in the trial court’s decision. 5 The trial court declined to act on the Department’s motion or application at a June 28, 1999 hearing, but on June 29, 1999, entered a “supplemental order” expressly reaffirming the conclusions in its June 17, 1999 order that the Commission, Mr. Heape, and the fifteen individual Native Americans were “interested persons” for the purpose of Tenn. Code Ann. § 46-4-102.

On June 30, 1999, the trial court entered another order addressing the perceived “conflict of interest” between the Department and the Commission. Relying on its conclusion that the Commission and Mr. Heape were “interested persons” for the purpose of Tenn.Code Ann. § 46M:-102, the trial court determined that they were entitled to “independent, non-conflicted legal advice” and that the Office of the Attorney General could not provide this advice because it was statutorily obligated to represent the Department. Accordingly, the trial court appointed Virginia Lee Story, a lawyer practicing in Franklin, as “ ‘attorney general pro tern’ or ‘outside counsel’ ” to represent the Commission and Mr. Heape in this proceeding. 6

On July 20, 1999, the Department filed an application for a Tenn.R.App.P. 10 extraordinary appeal with this court. On July 21, 1999, this court entered an order directing the Commission, Mr. Heape, and *745 the fifteen individual Native Americans to respond to the Department’s application and staying all proceedings in the trial court. On July 22, 1999, the trial court filed an “Order to the Court of Appeals Requesting Remand and Lifting of Stay” to allow it to “reconsider” its June 29 and 30, 1999 orders and to act on the Department’s Tenn.R.App.P. 9 application for an interlocutory appeal. On July 26, 1999, this court entered an order modifying its stay to permit the trial court to reconsider its conclusion that the Commission, Mr. Heape, and the fifteen individual Native Americans were “interested persons” under Tenn.Code Ann. § 46-4-102 and its decision to appoint an “attorney general pro tem” to represent the Commission and Mr. Heape.

The trial court conducted another hearing on August 5, 1999. During this hearing, the individual Native Americans introduced additional evidence regarding their status as “interested persons” under Tenn. Code Ann. § 46-4-102. They also presented evidence that representatives of the State had attempted to interfere with the religious ceremonies they were conducting at the construction site. On August 6, 1999, the trial court filed a lengthy order reaffirming its earlier decisions that the Commission, Mr. Heape, and the fifteen individual Native Americans were “interested persons” under TenmCode Ann. § 46-4-102 and appointing an “attorney general pro tem” to represent the Commission and Mr. Heape. The trial court also found that interfering with the religious ceremonies at the construction site was “totally inappropriate” and invited the individual Native Americans to apply to this court for permission to pursue an injunction pending appeal. 7

On August 16, 1999, the Department filed with this court a renewed and amended application for a Tenn.R.App.P. 10 extraordinary appeal. The Department asserted that the trial court erred by concluding that the Commission, Mr. Heape, and the fifteen individual Native Americans were “interested persons” under TenmCode Ann. § 46-4-102 and that the trial court lacked authority to appoint an “attorney general pro tem” to represent the Commission and Mr. Heape. On August 27, 1999, this court granted the Department’s application for an extraordinary appeal and directed the parties to address five issues.

I.

Common-Law Protection of Burial Grounds

We deal here with a most sensitive matter. Disputes regarding burial and disinterment touch deep-seated human emotions and evoke strongly held personal and religious beliefs. Where once persons looked to religion or custom for resolution of these disputes, now they look to the law to provide the neutral principles for resolving among the living disputes involving the disposition of the dead and the rights surrounding their remains.

A.

Since antiquity, most societies have held burial grounds in great reverence. Memphis State Line R.R. v. Forest Hill Cemetery Co., 116 Tenn. 400, 418, 94 S.W. 69, 73 (1906) (observing that repositories of the dead are regarded with veneration); see also In re Widening of Beekman Street, 4 Bradf.Sur.R. 503, 522-23 (Sur.Ct. of N.Y. County 1856); Mills v. Carolina Cemetery *746 Park Corp., 242 N.C. 20, 86 S.E.2d 893, 898 (1955). The early common law protected the sanctity of the grave by recognizing the “right” to a decent burial and the “right” to undisturbed repose. Carney v. Smith, 222 Tenn. 472, 475, 437 S.W.2d 246, 247 (1969); Thompson v. State, 105 Tenn. 177, 180, 58 S.W. 213, 213 (1900). Accordingly, unless a good and substantial reason existed, the common law strongly disfavored disturbing a body once it had been suitably buried. Estes v. Woodlawn Mem’l Park, Inc., 780 S.W.2d 759, 763 (Tenn.Ct.App.1989); Mallen v. Mallen, 520 S.W.2d 736, 737 (Tenn.Ct.App.1974). In the words of Justice Cardozo, then a member of the New York Court of Appeals, “[t]he dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.” Yome v. Gorman, 242 N.Y. 395, 152 N.E. 126, 129 (1926).

The right to undisturbed repose was not, however, absolute. Mallen v. Mallen, 520 S.W.2d at 737. The aphorism “Once a graveyard, always a graveyard” reflects custom only, not a rule of substantive law. Trustees of First Presbyterian Church v. Alling, 54 N.J.Super. 141, 148 A.2d 510, 514 (Ch.Div.1959); Percival E. Jackson, The Law of Cadavers 395 (2d ed. 1950) (“Jackson”). Thus, American common law recognized that human remains could be disinterred and reinterred elsewhere when their burial place is no longer under the care of the living or has lost its character as a burial ground. Hines v. State, 126 Tenn. 1, 6, 149 S.W. 1058, 1060 (1911); Memphis State Line R.R. v. Forest Hill Cemetery, 116 Tenn. at 419, 94 S.W. at 73-74; Boyd v. Ducktown Chem. & Iron Co., 19 Tenn.App. 392, 401, 89 S.W.2d 360, 365-66 (1935). The relatives of persons buried in an abandoned burial ground had only the right to due notice and the right to a reasonable opportunity to move their relative’s body to some other place of their own selection. If the relatives declined to take responsibility for moving the human remains, others could see to it that the remains were disinterred and reinterred in a decent manner. Dutto v. Forest Hill Cemetery, 8 Tenn.C.C.A. (Higgins) 120, 133 (1917) (quoting Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135, 18 So. 565 (1895)).

The common law permitted the disinterment of human remains when the demands of the living outweighed the right of undisturbed repose. Henry Y. Bernard, The Law of Death and Disposal of the Dead 4 (2d ed. 1979) (“Bernard”); Jackson, at 111. Accordingly, the common law did not place burial grounds beyond the power of eminent domain. United States v. Unknoum Heirs of All Persons Buried in Post Oak Mission Cemetery, 152 F.Supp. 452, 453 (W.D.Okla.1957) (authorizing the reinterment of the widow and children of the last chief of the Comanche Indians); In re Widening of Beekman Street, 4 Bradf. Sur.R. at 503; Bernard, at 4; Jackson, at 404; C.J. Polson, et al., The Disposal of the Dead 205-06 (1953) (“Poison”). The Tennessee Supreme Court recognized this principle approximately one hundred years ago but, in the absence of a statute, limited the power of eminent domain to abandoned burial grounds. Justice Neil stated:

True it is the dead must give place to the living. In process of time their sepulchers are made the seats of cities, and are traversed by streets, and daily trodden by the feet of man. This is inevitable in the course of ages. But while these places are yet within the memory and under the active care of the living, while they are still devoted to pious uses, they are sacred, and we cannot suppose that the Legislature intended that they should be violated, in the absence of special provisions upon the subject, authorizing such invasion, and indi- *747 eating a method for the disinterment, removal, and reinterment of the bodies buried, and directing how the expense thereof shall be borne.

Memphis State Line R.R. v. Forest Hill Cemetery Co., 116 Tenn. at 419, 94 S.W. at 73-74.

B.

Prehistoric humans showed indifference to the dead by abandoning their bodies where they died. Poison, at 3. As time passed, the fear of death, the belief in life after death, and the unclean nature of dead bodies began to shape human burial practices. Superstition and religion played a significant role. Sir James G. Frazier, The Golden Bough, preface vii (1 vol. abridged ed.1996); Polson, at 4-5; Note, Criminal Law — Right to Autopsy in Murder Prosecutions, 24 Tenn.L.Rev. 385, 385 (1956). The first active burials amounted to placing a pile of stones over the body or placing the body in a cave when one was available. These practices were later replaced by burial in the earth which has continued to be the principal method of disposing of human remains throughout the world. Polson, at 3.

In pre-Christian England, the dead were buried far from towns and cities. With the arrival of Christianity came the custom of burial in and around church buildings. Prominent persons were buried in the churches themselves. Eventually, every person in England, except executed felons, heretics, and persons who took their own lives, had a right to be buried in the consecrated ground of a parish churchyard. In re Widening of Beekman Street, 4 Bradf.Sur.R. at 518; Jackson, at 12-13, 24, 57-58.

Between the sixth and thirteenth centuries, as the custom of burial in churchyards became more widespread, the church’s ecclesiastical courts gradually extracted jurisdiction over all matters relating to burial from the common-law courts. Eventually, the ecclesiastical courts exercised exclusive temporal jurisdiction over these matters. In re Widening of Beekman Street, 4 Bradf.Sur.R. at 518; Jackson, at 22. Disinterring human remains without lawful authority was a common-law misdemeanor and was also an ecclesiastical offense. Poison, at 187. For human remains buried in consecrated ground, permission to disinter could be obtained only from the bishop of the diocese having jurisdiction over the burial ground and then only if the remains were to be reinterred in consecrated ground. For human remains not buried in consecrated ground, permission had to be obtained from the coroner, and the coroner granted permission only for the purpose of conducting an inquest. The ecclesiastical courts’ jurisdiction did not begin to wane until Parliament enacted the Burial Acts of 1855 which invested the Crown’s Principle Secretaries of State with authority over human remains buried in unconsecrated ground and any other exhumation for purposes other than reburial in consecrated ground. Polson, at 187-205; see also Anne R. Schiff, Arising From the Dead: Challenges to Posthumous Procreation, 75 N.C.L.Rev. 901, 923 (1997).

Many of the English burial customs found their way to America. Even though the colonists did not have the same right to be buried in a churchyard that their counterparts in England had, interment in churchyards was the most common mode of burial, followed by family burial grounds and, later, public cemeteries. Jackson, at 14. The states did not incorporate the English ecclesiastical law when they incorporated the common law. In re Marriage of Anonymous Wife v. Anonymous Husband, 153 Ariz. 573, 739 P.2d 794, 796 (1987); State v. One 1990 Honda Accord, *748 154 N.J. 373, 712 A.2d 1148, 1150 (1998); In re Donn, 14 N.Y.S. 189, 190 (1891); Brewer v. Brewer, 242 S.C. 9, 129 S.E.2d 736, 744 (1963); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438, 441 (1985). Similarly, the American states, reflecting their belief of the importance of the separation of church and state, did not establish ecclesiastical courts. Du Pont v. Du Pont, 85 A.2d 724, 733 (Del.1951); Bogert v. City of Indianapolis, 13 Ind. 134, 140 (1859); Bernard, at 14.

One of the earliest and most authoritative decisions confirming that the civil secular courts in America had jurisdiction to resolve disputes involving burial and rein-terment involved the City of New York’s decision to widen Beekman Street. To complete this project, the city condemned a portion of the cemetery located in the churchyard of the Brick Presbyterian Church, thereby requiring the relocation of the graves of one hundred persons buried in the cemetery “to give place to the cart-ways and foot-walks of Beekman street.” In re Widening of Beekman Street, 4 Bradf.Sur.R. at 507. The city paid the church $28,000 for the property, but a dispute arose between the church and the descendants of the persons buried in the cemetery regarding the disposition of the funds and the church’s plans to reinter the remains in a common grave. One of the parties was the daughter of Moses Sherwood, who had been buried in the cemetery in 1801, who insisted that she and the other members of Mr. Sherwood’s family had the right to require the church to reinter Mr. Sherwood in a separate grave with the separate monument that had been erected on his grave in the church cemetery.

The Supreme Court of New York appointed Samuel B. Ruggles to serve as referee to resolve the dispute. Mr. Rug-gles’s report has become a cornerstone of the development of the common law of burial in the United States. Arthur L.H. Street, Street’s Mortuary Jurisprudence § 184, at 96 (1948); Bernard, at 14-15; William Boulier, Sperm, Spleens and Other Valuables: the Need to Recognize Property Rights in Human Body Parts, 23 Hofstra L.Rev. 693, 707 (1995); Diana D. Thomas, Indian Burial Issues: Preservation or Desecration, 59 U.M.KC.L.Rev. 737, 748 (1991). One of the Ruggles Report’s essential conclusions is that the secular American courts have jurisdiction over disputes involving the disposition of the dead and the rights surrounding their remains. In re Widening of Beekman Street, 4 Bradf.Sur.R. at 526. 8 The Special Term of the Supreme Court confirmed the Ruggles Report in April 1856 and directed the church to pay Mr. Sherwood’s daughter $100 to reinter his remains in a separate grave and to re-erect his monument. The court also directed the church to separately reinter any other human remains whenever identified by the next of kin.

*749 In this country today, the civil courts have unquestioned jurisdiction to resolve disputes involving the burial and reinterment of human remains. Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d 1007, 1008 (Colo.Ct.App.1991); Louisville & Nashville R.R. v. Wilson, 123 Ga. 62, 51 S.E. 24, 25-26 (1905); Sherman v. Sherman, 330 N.J.Super. 638, 750 A.2d 229, 233 (1999); Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d at 441. It is now commonly said that human remains, after interment, are in the custody of the law, and are subject to the control and discretion of the courts applying equitable principles. Estes v. Woodlawn Mem’l Park, Inc., 780 S.W.2d at 762-63; see also In re Estate of Medlen, 286 Ill.App.3d 860, 222 Ill.Dec. 220, 677 N.E.2d 33, 36 (1997); Harris v. Borough of Fair Haven, 317 N.J.Super. 226, 721 A.2d 758, 762 (1998).

The courts must employ neutral legal principles to resolve disputes among the living involving the disposition of human remains. Mallen v. Mallen, 520 S.W.2d at 737. In the search for these principles, the courts should not close their eyes to the customs and necessities of civilizations in dealing with the dead and the sentiments connected with the decent care and disposal of human remains. Mallen v. Mallen, 520 S.W.2d at 737; see also Louisville & Nashville R.R. v. Wilson, 51 S.E. at 25; Goldman v. Mollen, 168 Va. 345, 191 S.E. 627, 632 (1937). However, while the courts should respect the rights of persons to freely exercise their religion, Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d at 1009, they must not permit the civil law to be circumscribed or superceded by the canon law of any particular religion. Mallen v. Mallen, 520 S.W.2d at 737. Religious customs, laws, and beliefs regarding the disposition of human remains are to be considered only for the purpose of producing an equitable result. Wolf v. Rose Hill Cemetery Ass’n, 914 P.2d 468, 472 (Colo.Ct.App.1995).

II.

Statutes Pertaining To Burial Grounds

The common law is, of course, not the only source for the rules and procedures governing the burial, custody, and disposition of human remains. The Tennessee General Assembly, as the principal architect of this state’s public policy, may, and in fact has, fashioned rules and procedures governing the termination of burial grounds in general and Native American burial grounds in particular.

A.

Until approximately fifty years ago, the rules and principles governing burials and the disposition and reinterment of human remains were chiefly court-made. When the needs and convenience of the living required it, abandoned cemeteries could be closed and the human remains therein reinterred elsewhere. See Hines v. State, 126 Tenn. at 6, 149 S.W. at 1060; Boyd v. Ducktown Chem. & Iron Co., 19 Tenn.App. at 401, 89 S.W.2d at 365-66. The power of eminent domain could be exercised to acquire land containing a burial ground, but the acquiring authority could not compel the closure of the burial ground and the reinterment of the remains unless the burial ground was abandoned. Memphis State Line R.R. v. Forest Hill Cemetery, 116 Tenn. at 419, 94 S.W. at 73-74. The common law did not give the relatives and descendants of persons buried in an abandoned burial ground the power to block reinterring the human remains in another location. Rather, it recognized that these persons had a right to timely notice of the plans to relocate the human remains and the right to make their own arrangements for the reinterment of the relative’s remains at a place of their choosing. Dutto *750 v. Forest Hill Cemetery, 8 Tenn.C.C.A. at 133.

The late 1940⅛ and early 1950⅛ marked dramatic growth in the construction of roads in the nation and in Tennessee. In 1949, most likely to facilitate the construction of an expanded network of rural roads, 9 the General Assembly expanded the power of public authorities to condemn real property containing burial grounds, to relocate the human remains in the burial grounds, and to put the property to other uses. 10 As if in direct response to the Tennessee Supreme Court’s Memphis State Line R.R. v. Forest Hill Cemetery Co. opinion, this bill specifically authorized the closure of burial grounds, required definite arrangements for the reinterment of the human remains in the burial grounds, and required prior court approval of the allocation of costs.

The General Assembly expanded the circumstances permitting the closure of a burial ground beyond those recognized by the common law. While the Tennessee Supreme Court had limited closure to abandoned burial grounds, the statute authorized closure and reinterment (1) when the burial ground was abandoned [Tenn.Code Ann. § 46-4-101(1) ], (2) when the burial ground was in a neglected or abandoned condition [Tenn.Code Ann. § 46-4-101(2) ], (3) when “conditions or activities about or near the burial ground ... render the further use of same ... inconsistent with due and proper reverence or respect for the memory of the dead” [Tenn.Code Ann. § 46-4-101(3) ], and (4) when the continued used of the property as a burial ground became “unsuitable” for any other reason [Tenn.Code Ann. § 46-4-101(3) ].

The statutory procedure devised by the General Assembly for closing a burial ground is straightforward. Any “interested person or persons” or any municipality or county in which the burial ground is situated may file suit in the chancery court sitting in the county where the burial ground is located. Tenn.Code Ann. § 46-4-103(a). The plaintiff or plaintiffs must name as defendants (a) “interested persons” who are not plaintiffs and (b) the owners of the land or of any right or interest in the land. Tenn.Code Ann. § 46-4-103(b). Following a hearing, the trial court “shall” grant the request to close the burial ground if the following four conditions are met:

(1) any one of the conditions specified in Tenn.Code Ann. § 46-4-101 exist;

(2) the property is unsuitable for use as a burial ground for any reason or the continued use of the property as a burial ground is inconsistent with due and proper reverence or respect for the memory of the dead;

(3) definite and suitable arrangements have been made or will be made for the reinterment of the human remains; and

(4) the removal and reinterment of the human remains will be “done with *751 due care and decency, and that suitable memorial or memorials will be erected at the place of reinterment.”

Tenn.Code Ann. § 46-4-104. 11

B.

In addition to these generally applicable statutes, the General Assembly of Tennessee, like the federal government and many other states, has also enacted statutes specifically governing the disposition of Native American human remains and funerary objects. These statutes were long-overdue responses to the common practice, over two centuries old, of digging up and removing the contents of Native American graves for reasons of profit and curiosity. 12 During this time, massive numbers of Native American human remains 13 were removed from them graves for storage or display by government agencies, museums, universities, and tourist attractions. The practice became so widespread that virtually every Native American tribe or group in the country was affected by the grave looting.

For decades, various Native American groups repeatedly sought the repatriation of these human remains and funerary objects without much success. John B. Win-ski, Note, There Are Skeletons in the Closet: The Repatriation of Native American Human Remains and Burial Objects, 34 Ariz.L.Rev. 187, 189 (1992) (“Winski”). The Native Americans’ efforts to protect and repatriate Native American human remains and funerary objects became galvanized in 1986 with the discovery that 18,-500 Native American human remains were being warehoused in the Smithsonian Institution. Trope & Echo-Hawk, 24 Ariz. St. L.J. at 55. The Congress responded in 1989 with the enactment of the National Museum of the American Indian Act. 14 This Act required the Smithsonian Institution to catalogue the Native American human remains and funerary objects. It also provided for the return of these human remains and funerary objects at the request of a lineal descendent or culturally affiliated tribe. 20 U.S.C.A. § 80q-9(c).

In 1990, both the General Assembly of Tennessee and the Congress enacted additional statutes governing Native American human remains and funerary objects. First, the Tennessee General Assembly strengthened the State’s protection of these artifacts. 15 This legislation added three Native American members to the Archeological Advisory Committee [Tenn. Code Ann. § ll-6-103(c)(4) (1999)] and *752 outlawed the display of Native American human remains except when used as evidence in judicial proceedings [Tenn.Code Ann. §§ 11 — 6—104(b), -117 (1999) ]. It also required prompt reporting of the discovery of human remains to the Department of Environment and Conservation [Tenn. Code Ann. § ll-6-107(d)(3) (1999)] and gave Native Americans the right to be present during the excavation of Native American human remains [Tenn.Code Ann. § ll-6-116(a) ]. 16

Unlike statutes in other states giving Native Americans veto power over the disinterment of Native American remains, Tennessee’s statutes envision that human remains and funerary objects may be removed and appropriately reinterred. 17 Tenn.Code Ann. § 11-6-107(d)(4) requires the State to take control of Native American human remains and that they be rein-terred as provided in Tenn.Code Ann. § 11-6-119 (1999) or Tenn.Code Ann. §§ 46-4-101, -104. Tenn.Code Ann. § 11-6-116(c) 18 requires persons intending to close a burial ground containing Native American human remains to give ten days written notice to the State Archeologist and requires the State archeologist to promptly notify the Native American members of the Archeological Advisory Commission and the chair of the Commission of Indian Affairs. 19 Finally, Tenn. Code Ann. § 11-6-119 provides that Native American human remains and funerary objects “shall be properly reburied ... in accordance with procedures formulated by the advisory council which are appropriate to Native American traditions.” 20

Seven months later, the 101st Congress enacted the Native American Graves Protection and Repatriation Act (“NAGPRA”). The National Museum of the American Indian Act had proved unsatisfactory be *753 cause it applied only to human remains and funerary objects held by the Smithsonian Institution. 21 NAGPRA expanded federal protection to cover human remains and items found on federal or tribal land and to items held by federally funded agencies and museums, 22 but does not apply to items found on private or state land, items held by museums that do not receive federal funds, or items purchased by a museum or archeologist in good faith. 23 Like the National Museum of the American Indian Act, NAGPRA requires the return of human remains and funerary objects to lineal decedents and to Native American tribes that the museum or government agency determine to be culturally affiliated. 24 If a museum or govermnent agency has not established cultural affiliation with a particular Native American tribe, the tribe may still be entitled to the human remains and funerary objects if it proves by a preponderance of the evidence that it is culturally affiliated with the human remains or items. 25

III.

Interested Person Status Under State Law

As its first issue, the Department asserts that the trial court erred by permitting fifteen individual Native Americans, the Tennessee Commission of Indian Affairs, and the executive director of the Tennessee Commission of Indian Affairs to intervene in the case as “interested parties” under Tenn.Code Ann. § 46^4-102. The Department argues that the trial court’s interpretation of Tenn.Code Ann. § 46^4-102 is inconsistent with its plain meaning and with the interpretation of the statute by other courts. 26 We agree that the trial court has misconstrued the statute. However, even though none of the individual Native American parties qualify for mandatory or permissive intervention as “interested persons,” the trial court could have appropriately granted a request to permit them to participate as amicus curiae.

The provisions for notice in the statutory procedures for closing a burial ground reflect the common law. In 1917, the Court of Civil Appeals, citing the Supreme Court of Alabama with approval, observed that the relat