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Human remains prompt policy refinement

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KALISPELL, Mont. - The bones of the past are creating policy dilemmas in the present as city, state and tribal leaders grapple with the sensitive issue of how to protect human remains being exposed to the elements and passersby near a popular city park here.

Over the past 15 years or so, at least four sets of remains found on private land in the area have been claimed and repatriated by the Confederated Salish and Kootenai Tribes, according to Tribal Preservation Office official Francis Auld. Other tribal remains are thought to be interred at various locales in and around this city of 14,000, which lies at the confluence of historic migration routes about 30 miles north of the Flathead Indian Reservation.

"We believe there are many burials in the Kalispell area, both on private and public property," Auld said.

Up until now, tribal and city officials have quietly dealt with the finds on a government-to-government and case-by-case basis, but their actions are being called into question by Kalispell resident John Gisselbrecht, who charges that state law is being ignored and the burial site, which could potentially span acres, is not being properly protected.

Local lore indicates that other remains were unearthed in the vicinity of present-day Woodland Park when a railroad line was first built in the area during the late 1800s. At some point, a wooden statue of an American Indian was erected near where the tracks, now owned by the Burlington Northern-Santa Fe Railway, bisect a hillside. Confirmed deposits of bones and other material have been found nearby on ground owned by a private business, and a brick foundry that once operated nearby reportedly came across multiple sets of other buried bones, as well.

There was little prescribed state policy for dealing with incidental finds of the deceased - whether they were Indian or from any other race - before passage of the 1991 Montana Human Skeletal Remains and Burial Site Protection Act. While the federal Native American Graves Protection and Repatriation Act primarily covers artifact sales, museum collections and discoveries on federal and tribal lands, participants in the debate say state guidelines were sorely needed in Montana, home to an array of indigenous peoples and cultures.

Among other provisions, the 1991 law created the Montana Burial Preservation Board, which includes representatives from each of the state's seven Indian reservations and from the landless Little Shell Band of Chippewa Indians, and set up mechanisms and notification procedures when grave sites are found on state or private land. The statute also created various penalties for pilferers and artifact scavengers. Further amendments regarding the repatriation process were added in the 2001 Legislature.

Under the state law, the finder of human remains, burial sites or burial objects is required to immediately notify the county coroner, who is in turn is required to conduct an investigation and notify the state's historic preservation officer within 24 hours if a forensic exam determines that a criminal inquiry into the cause of death is not needed. The state officer then must contact the land owner and the burial board regarding the discovery.

"If the state historic preservation officer cannot be contacted, the coroner shall notify a member of the (burial) board or the law enforcement agency of the nearest reservation within 24 hours," the statute adds.

City officials in Kalispell, noting that at least some of the recent finds occurred prior to enactment of the state statute, say they contacted the State Historical Preservation Office early on about the remains. But they say the state failed to do anything, prompting them to instead work directly with the Salish and Kootenai Tribes.

Stan Wilmoth, the current state archeologist, said there's no written documentation of interaction between the city and his office over the pre-1991 finds. Gisselbrecht, who claims Oglala Sioux heritage and runs the Native American Resource, Research and Cultural Center in Kalispell, contends the city and tribes now need to be following the law's chain of command, and the parties shouldn't be making repatriation decisions without agency and burial board involvement. He also charges that without adequate investigation, no one can know for sure what tribal entity should be claiming the unearthed remains.

"Nobody gets to see anything," he said. "As soon as they're found, they get bagged up and taken away."

Gisselbrecht said he's dismayed that the section of the park that sits closest to where confirmed remains have been found is used without any restrictions by mountain bikers, transients, joggers and dog walkers. He'd like to see the site, at least the portion on public property, surrounded with an 8-foot-high fence to keep people and animals out.

But Charles Harball, the city's attorney, noted that no one knows if any remains are buried on park property. Construction of a new swimming pool complex and an adjacent skateboard park nearby didn't turn up any reported bones or burial objects, but he said that may be because the site was swampy and had been filled in by the city over the years. A marker that sits close to the pool refers to Indians who died in the area, but Harball said it doesn't appear to denote a specific grave site.

"No one really knows what's there," he said of the block of land in general. "We'll wait for direction from the state and tribes" to determine what, if anything, should be protected.

Auld said the tribes have conducted internal archeological work on some private land in the area, and it's been determined that the cultural ties exist. He said his preference is that the remains stay in place, "but history sometimes prevents us from doing that." He added that the ongoing issue of Indian people having to deal with archeological interest from non-Indians continues to be troubling.

"We became mantle pieces stored in cardboard boxes in university storerooms," Auld explained. "We're very, very reluctant to share anything with anybody."

Nonetheless, a Feb. 5 meeting between tribal, city and state officials was triggered, at least in part, by Gisselbrecht's complaints and his recent promise to sue if procedures aren't followed and protections aren't put into place. Meeting participants, including Assistant Attorney General Sarah Bond, agreed to have John Carter, an attorney with the Salish and Kootenai Tribes, draw up proposed protocol to be considered by the various parties, including the burial board, which is expected to meet about the Kalispell situation in coming weeks.

Bond and Wilmoth, the state archeologist, agree that the 1991 law needs to be filled out through rulemaking so its provisions can be fully implemented. Auld added that it's important to develop a statewide protocol so all tribes across Montana know what to expect if the graves of their ancestors are uncovered.

"I'm satisfied with the way things are currently going," he said. "They're proceeding as best they can."

"It's just a tough issue," Bond agreed. "But luckily there aren't any uncovered remains in limbo. The bulldozers aren't sitting there idling. We've got some time."