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Efforts to preserve exposed burial sites fuel court action

PIERRE, S.D. - The Yankton Sioux Tribe's federal lawsuit over remains exposed along the shoreline of Lake Francis Case will be expanded to include ancestors in sacred burial sites predating the White Swan cemetery.

In addition, the Standing Rock Sioux Tribe has filed suit demanding that the U.S. Corps of Engineers be prevented from further lowering water levels at Lake Oahe.

Both actions come on the heels of extended meetings between the tribes and the corps to negotiate a permanent solution for preservation of remains exposed by receding water levels in the two main-stem Missouri River dams.

During a conference call Oct. 24, U.S. District Judge Lawrence L. Piersol decided to allow the Yankton Sioux Tribe to expand its lawsuit to include remains of descendants buried prior to those found in the White Swan cemetery on the northern shore of Lake Francis Case. Then Piersol indicated he would handle the Fort Randall case separately from the other sites.

Artifacts found in the area suggest these sites are nearly 2,000 years old and are protected by national historic preservation laws, tribal officials say.

Corps officials have found sites beyond those at the White Swan cemetery and tribal members said there are others still further removed from the cemetery.

Last year, the judge ordered the corps to keep water levels low until the exposed remains could be reburied.

His latest decision, said Faith Spotted Eagle, who has worked on the negotiations for the preservation of the burial sites, has strengthened the tribe's position.

"Now they are bound by Piersol to go through the procedures of examining if it is a sacred site. The National Historic Advisory Council has advised us that we meet all the criteria," Spotted Eagle said.

"It adds more meat to (the suit) because if the amendment wasn't added we would have had to file a separate suit for the violations of the National Historic Preservation Act. This way he allowed the amendment onto the temporary restraining order which is what Standing Rock is doing," she said.

That lawsuit against the corps was filed in U.S. District Court in Pierre Oct. 20 by the Standing Rock Sioux Tribe and descendants of Chief Mad Bear. It asks for a temporary restraining order barring the corps from lowering the elevation of the Lake Oahe reservoir and for a permanent injunction preventing a drop in water levels exposing additional human remains along the fluctuating shoreline in the Wakpala District of Standing Rock.

A string of burial sites along the Missouri River were on parts of the lands condemned by the federal government in the early 1950s for the Pick-Sloan Dam Project. While the corps promised to relocate the remains as the dams were constructed, exposed remains began surfacing in the 1960s. Tribal leaders and corps officials later discovered some contractors hired to do the work nearly 50 years ago failed to move the remains.

Standing Rock Tribal Attorney Mike Swallow says the corps' intent to lower water levels by another 4 feet is an "intentional unearthing of human remains" and constitutes a direct violation of the federal Native American Graves Protection and Repatriation Act (NAGPRA).

"Under NAGPRA, defendants must immediately cease all activities causing the inadvertent excavation of Native American human remains," the tribe's complaint states.

Named as defendants are Joseph Westphal, assistant secretary of the Army for civil works, General Furman, chief of the Army Corps of Engineers and Brig. Gen. Carl Strock, Northwestern Division commander for the corps.

A tribal Historic Preservation Office monitor first discovered human remains in late August in about a two-mile area exposed by the receding waters of Lake Oahe. Tribal officials determined, through corps records and their own documentation, that the remains are from burials in Mad Bear Cemeteries No. 1 and No. 2. These cemeteries were established in 1893 on land owned by Conception Abbey, a corporation affiliated with the Catholic Church, and served the community and descendants of Chief Mad Bear until 1945.

The corps' records from 1962 indicate that all 108 graves within the two Mad Bear cemeteries were relocated to an elevation that would not be affected by the rising waters of Lake Oahe. To date, more than 100 sets of human remains have been found at the Mad Bear site, tribal officials say.

A nearby, third site, determined by Tribal Archaeologist Bill Kurtz to be of Arikara origin, was exposed by wave action. The tribe's suit alleges "there has been looting of Native American human remains and artifacts on the land administered by the defendants" at all three areas, despite the presence of a camp established by lineal descendants of Mato Chanzeka, Chief Mad Bear.

"The Corps of Engineers was supposed to relocate the cemeteries that were flooded when they built the Oahe Dam," said Chairman Charles W. Murphy. "They failed to do so, and now the manner (in which) they operate Oahe Dam causes wave action that is eroding the remains of our ancestors. There are historic preservation laws to prevent this, but the corps is violating these laws. That is why a lawsuit is necessary."

The suit, with supporting affidavits from Standing Rock Tribal Historic Preservation Officer Tim Mentz and Councilman Pat McLaughlin describes the "great anguish" and "devastation" caused by this affront to the traditional values of the Lakota people and the measure of respect accorded to their ancestors.

In addition to the temporary restraining order barring the corps from lowering the elevation of Lake Oahe Reservoir below 1,600 feet of sea level, the tribe asked for a permanent injunction preventing a drop in water levels "in the absence of the placement of levees or such other structures that shall protect the Mad Bear Camp and Leavenworth (Arikara) sites from erosion and looting."

"The Corps of Engineers has an obligation under the national Historic Preservation Act and Native American Graves Protection and Repatriation Act to protect these sites, and to properly evaluate their historic and cultural significance," Mentz said.

"They have not done so. Instead, they continue to drain Lake Oahe, so more and more human remains are unearthed. This is extremely difficult for the lineal descendants, to see the remains of their ancestors becoming exposed, " he said.

"We are doing this to protect our rights under federal law, and to defend the rights of the lineal descendants. No other people in the United States are subject to having the government conduct its affairs in such a manner as to unearth the remains of their relatives. It should not happen to the descendants of one of our chiefs," Chairman Murphy said.

Meanwhile, tribal officials from across the nation were scheduled to gather at Fort Randall on the Yankton Sioux Reservation for a Treaty Council meeting that will include a discussion of how the burial sites are being addressed.

Fragments of bone, coffins and thinly covered graves of those buried later in what became nearby cemeteries all along the Missouri River have resurfaced as water levels have dropped. While Sioux tribal members have posted watches at the sites to guard them, they worry about continued looting of the sites.

The White Swan Oyate, a group of tribal men who devote their time to preservation of the burial sites and cultural training for youth, have been watching over the sites, Spotted Eagle said.

The Yankton Sioux Tribe scheduled a meeting with corps officials in early November to resume its negotiations for how the agency will address a permanent solution for the preservation of the remains.