State laws offer few protections for mound
by Dan Whisenhunt
Jul 08, 2009 | 7447 views |  20 comments | 64 64 recommendations | email to a friend | print
No trespassing signs have been placed near the mound which rests on a hill behind the Oxford Exchange. Photo: Trent Penny/The Anniston Star
No trespassing signs have been placed near the mound which rests on a hill behind the Oxford Exchange. Photo: Trent Penny/The Anniston Star
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OXFORD — People who oppose the destruction of a 1,500-year-old American Indian mound may have few legal options according to people familiar with state law.

Even if the site contains human remains it may not be enough to stop the destruction because it does not involve the use of federal money.

Meanwhile attempts to track down a University of Alabama study on the structure have been unsuccessful. People familiar with the study, including city officials, said it found little at the site.

But the study may be of little help in determining the true value of the site. An archaeologist for the Alabama Historical Commission questions how the university determined it contained no human remains.

There are new "No Trespassing" signs in front of the mound which rests on top of a hill behind the Oxford Exchange. A gate keeps the curious away.

Workers hired by the city carried more dirt away from the site Tuesday. The mound is the largest known structure of its kind in the state. It will be destroyed so part of the dirt in the hill can become fill for a Sam's Club, a move that has angered American Indians.

Two state laws could apply here. One section of the law deals with excavating these types of mounds and other historical artifacts. The other law deals with destroying bodies, graves or markers.

According to Tracy Roberts, assistant general counsel with the Alabama League of Municipalities, the law on excavation is clear. Cities must get permission from the state before they can remove a stone mound like the one in Oxford. Breaking the law is a misdemeanor punishable by a fine.

The problem is figuring out which state agency is responsible for giving permission.

The most likely candidate, the Alabama Historical Commission, does not think the excavation law applies to land not owned by the state.

Bill Little, an attorney for the historical commission, said he interprets the law as offering more protection for land owners, in this case the city.

"It's a very difficult statute to interpret," Little said. "It seems to give an awful lot of rights to the landowner. It's very unclear as to whether the state can assert anything at all under this when it's contrary to the landowner's consent."

Roberts said the other agency responsible for enforcing the law would be the governor's office. Attempts to reach that office were unsuccessful.

The second law, which involves the willful destruction of remains, is a felony. Harry Holstein, a professor of archeology and anthropology at JSU said the law should apply in this case.

He said mounds constructed in this time period, known as the Woodland era, were commemorative and tend to contain human remains.

"The Native Americans are saying it's a commemorative marker," Holstein said. "It's a class C felony if you break up a tombstone and you knowingly do it."

But the man who helped write the law said the site could be destroyed as long as human remains are properly removed. Greg Rhinehart, a project reviewer with the Alabama Historical Commission, said if there were burials there the city would have to relocate the remains. But it wouldn't stop the destruction of the mound.

Mayor Leon Smith has said the city intends to take care of any remains, if found. Attempts to reach Smith for this story were unsuccessful.

The crime would be if the city knowingly destroyed human remains, Rhinehart said.

So what would stop the destruction?

According historical commission officials, there must be federal money spent on the project.

Stacye Hathorn, a state archeologist for the historical commission, said if it were a federal project the site would be protected.

"If there were a federal undertaking here it would have to be protected," she said. "Federal law says your federal taxes can't go to destroy your heritage."

Hathorn said she's seen the UA report and said it did find artifacts at the site, but not remains. The Star has submitted three separate records request for the report to the city, the university and the historical commission but has been unable to obtain a copy.

"They excavated a few squares and they didn't excavate the middle which is where the burials would be if there were any," Hathorn said of the university's work.

Attempts to reach university officials to discuss their findings were unsuccessful.

Holstein said it's possible the remains are so fragile that excavation would pulverize them. Hathorn said she wished the city would leave the site alone. She co-authored a letter saying the site should be considered for the National Register of Historic Places.

"This is like tearing down a church," she said. "It really is."
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