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Wednesday 12, 2002
by John-John Williams IV Argus
Reader http://www.argusleader.com
A federal court judge granted a temporary restraining
order Tuesday that halts further excavation at a site
near the Missouri River where human remains were
unearthed last month.
After three days of testimony, Judge Lawrence Piersol
rejected the U.S. Army Corp of Engineers and the state
of South Dakota's repeated requests to dismiss the
Yankton's Sioux Tribe's request for a temporary
restraining order. The tribe filed the lawsuit last
week. It also wanted Piersol to declare
unconstitutional the recent transfer of shoreline
property from the federal government to the state.
Bonnie Ulrich, assistant U.S. attorney, argued that
federal and state officials are following every step
of the Native American Grave Protection and
Repatriation Act.
Ulrich added that work at the site has been stopped
since last week. She also argued that moving the bones
and artifacts, which were unearthed May 14 at the
North Point Recreation Area near Pickstown, was done
to protect them.
There's nothing to stop," Ulrich said. "There's no
showing of irrefutable harm."
Piersol also stopped workers from moving dirt taken
from that site to be used for fill at a campground
registration area and a sewage dump station.
North Point has been there a long time without
expanding its camping area," Piersol said. "The world
isn't going to stop on that."
Several supporters of the Yankton Sioux Tribe attended
the proceedings and expressed relief at the outcome.
We got everything we wanted except for the return of
funerary objects," said Mary Wynne, lawyer for the
Yankton. "We certainly are glad, there's not going to
be heavy equipment to crush bones out there again".
The restraining order is in effect until June 28, at
which time Piersol as expected to rule on a
preliminary injunction. The injunction could stop all
work at the site until the lawsuit is settled. In the
meantime, the state has agreed to provide security at
the site for 30 days.
Piersol also said that the harm to the tribe
outweighed the harm to the defense because of the
religious significance the remains hold to them. He
added that members of the tribe should not be excluded
from going to the site for religious activities.
On Tuesday, lawyers for the state and the corps called
witnesses who testified that they followed procedure
when they removed 3 bodies for the site and shipped
them to a secure, climate-controlled room in Rapid
City.
Michael Fosha, assistant to the state archaeologist,
testified that bones at the site were disrupted by
humans when he viewed them June 4.
Fosha, who specializes is soil, said the soil around
one of the skulls he observed was different from the
soil surrounding it. "It was like the soil had been
moved around them," Fosha said. "Someone had disturbed
the site. The color of the dirt...the placement of the
dirt."
He also testified that he felt there were more burial
sites in the area. "At the present time, it's my
initial feeling that additional burial sites will be
found." Fosha said. "This is a location where numerous
individuals were buried."
Sandra Barnum, staff archaeologist for the Corp of
Engineers in Omaha testified that she removed at least
3 individuals and several artifacts from the site.
She said she moved the remains because they were loose
and she was afraid they would be harmed by the
elements or stolen.
Workers hired by the state to remove fill dirt at the
recreation area uncovered funerary objects and bones
thought the remains of two children and a woman last
month. State officials had the remains transported to
Rapid City, saying they first thought the remains were
not Native American.
Gov. Bill Janklow's press secretary, Bob Mercer, said
the state notified the tribe of the remains after
determining they were Native American.
Tribe members have said the transfer of the remains
without notification violates federal law designed to
protect cultural and religious sites such as burial
grounds. They have asked that the remains be returned
and reinterred. The Corp is responsible for handling
Native American artifacts and remains along the
Missouri River, even though the land was transferred
to the state earlier this year.
After Piersol made his ruling, members of the tribe
rejoiced and reflected on the decision.
I think the irrefutable harm part was a real point to
hear," Faith Spotted Eagle said. "I appreciated the
recognition."
Tribal member Judy Drapeau was worried about how
Piersol would decide, but when she heard the decision,
she was overwhelmed with joy.
I'm elated," Drapeau said. "It's stopping the
excavation. I'm glad we can go home and know that
they're okay for now."
Ulrich and John Cuhin, South Dakota Deputy Attorney
General, declined comment.
http://www.argusleader.com/news/Wednesdayfeature.shtml
Tribe: Workers moved bones
By LEE WILLIAMS
Argus Leader
published: 6/5/02
State admits exhuming remains; construction work not shut down
Workers moving dirt at a Missouri River campground unearthed three sets of human remains last month and moved the bones in violation of federal law, tribal representatives charged Tuesday.
A crew digging fill dirt with a backhoe and bulldozers in the North Point State Recreation Area uncovered the remains of a young woman and two children on May 14. Funerary artifacts such as pottery shards, glass beads, a pipe and an eagle claw also were found near the shallow grave.
Yankton Sioux tribal officials say the remains are Native American, and moving them without contacting the tribe violates the Native American Graves Repatriation Act (NAGPRA), a federal law that spells out the protocol to be followed once such remains surface.
"They violated federal and state law, but I am angriest that they can be so deceitful," said Sharon Drapeau, leader of the Braveheart Society, a tribal group concerned with repatriating Indian remains.
State officials, who recently took over management of the area from the U.S. Army Corps of Engineers, acknowledge that they exhumed the remains and transferred them to Rapid City. The Corps of Engineers maintains responsibility for the handling of Indian artifacts and remains along the river.
In a written statement, Bob Mercer, Gov. Bill Janklow's press secretary, said the original presumption by the corps was that the remains were not Native American, and the site fit no known cultural pattern. "Further determination by the state and the corps changed that opinion on May 23," Mercer said.
The next day, the state then contacted the three area tribal governments by mail and fax and telephone, according to Mercer. He said the corps had determined the best route was to remove all remains from the site, with plans to do so on June 4.
The operation was the corps' responsibility, Mercer said, but the state contacted the tribes as a "show of partnership and good faith."
South Dakota tribes have filed federal lawsuits in recent years after declining water levels caused Native American remains to surface at other burial sites.
North Point State Recreation Area Park Manager John Corey said the remains were removed "for security reasons, once they were exposed to the elements."
More remains - including two complete human skulls - are visible at the site, a spot near the river where workers have removed more than 6,000 cubic yards of soil.
They've deposited the dirt at various locations around the park, including near a proposed sewage dump station.
"All that dirt needs to be searched and returned," said Ellsworth Chytka, a tribal member at the site. "The state is using human remains as backfill for sewage, and campers will be sleeping on it."
Tribal members, elected officials and members of the Braveheart Society gathered at the site Tuesday.
"The general council gave us the authority to prevent any further desecration and to request the return of the remains," Chytka said.
The tribal members plan to maintain a vigil at the site until the status of the remains is solved. They say they'll try to get a court order to halt further activity at the site.
Mercer said work in the area where the remains were discovered stopped immediately after the discovery. But on Tuesday, two private contractors working for the state were on the scene. They voluntarily stopped working in the area after being confronted by tribal members.
"You would think they would have notified the construction workers, as they just took a load out yesterday," said Faith Spotted Eagle of the Braveheart Society.
The subcontractors, one of which is a company owned by a Native American, are angry state officials never told them there were remains at the site.
"I wish somebody would have stopped us before today," said Dick Adamson, owner of Adamson Construction. "I feel sorry for the tribe, I really do. We're taking their side in this - we're leaving."
The state hired Crazy Hawk Masonry of Mobridge to construct showers and bathrooms on the ridge near where the remains were found.
"No one told us about the remains or about NAGPRA. I don't even know what the word means," said Crazy Hawk owner Lloyd Hyde. "Now, they're finding bones in the dirt pile right by us. We're leaving."
Federal and state archeologists at the site said there is confusion as to who has jurisdiction at the site - the state or the corps.
"Responsibility for the site
hasn't been determined yet," Corey said. "This is bigger than just me. Had we known for sure, we never would have dug."
Tom Curran, operations manager for the corp's Fort Randall Project, said the state and federal governments have formed a working group to determine jurisdiction on sites such as this, but even he didn't know who was in charge.
"That's a good question," Curran said.
Tribal members say they've known through their oral history over the years that the small ridge where the remains were found had been used as a burial plot.
"I told the Corps of Engineers, several times, that these ridges all contain burial sites," Chytka said. "They are all my relatives."
Mercer said that identification was uncertain because several artifacts found in the grave, such as nails and wood, could have indicated a non-Indian burial.
"As I understand it, the site has puzzled the archeologists for a variety of reasons, " he wrote.
State archeologist Michael Foshia and corps archeologist Richard Harnois arrived to conduct a survey on Tuesday. They archeologist were intercepted by tribal members. After touring the site, they allowed tribal members to temporarily cover the remains.
"I told them we'd take care of it," Chytka said. "I didn't want them touching our ancestors."
Sharon Drapeau said a ceremony should have been conducted. "There should have at least been prayers," she said.
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