PIERRE, S.D. - Two court cases to protect Sioux burial grounds scattered along the Missouri River have forced the U.S. Corps of Engineers, Western Area Power Administration and judges into a balancing act.
A federal judge issued a temporary restraining order which went into effect Nov. 7, requiring the corps to maintain the water levels at Lake Oahe in response to a lawsuit filed by the Standing Rock Sioux Tribe.
The tribe, following a similar lawsuit filed by the Yankton Sioux Tribe nearly a year ago, took action to protect burials sites and remains of descendants of Chief Mad Bear.
Earlier this year, exposed remains were discovered near Wakpala, when water levels dropped in Lake Oahe. The river has exposed as many as 100 American Indian graves.
Meanwhile, Nov. 8, was the deadline for Yankton Sioux tribal members and corps officials to file reports with U.S. District Court Judge Lawrence Piersol. Both had to specify agreements and disagreements on how to protect exposed remains downstream, near the former White Swan cemetery on the shoreline of Lake Francis Case in southeastern South Dakota.
The corps is prohibited from raising water levels for at least a month until the exposed remains at the White Swan site can be covered as a temporary measure.
However, corps officials are saying the most recent decision, that experts say threatens Missouri River dam and reservoir operations, is forcing the corps to release more water from dams in North Dakota and Montana to make up for a drop in hydroelectric power generated at Lake Oahe.
The two restraining orders are intended to prevent fluctuating water levels in the two reservoirs from further disturbing cultural and historical sites important to the two tribes.
In response to the order, the corps released more water from North Dakota's Lake Sakakawea Nov. 7. Bob Keasling, a hydraulic engineer with the corps in Omaha, Neb., said the change will throw the river's three large reservoirs out of balance.
The judge's order also affects the Western Area Power Administration, a government agency that supplies power to rural cooperatives across the region. The administration was forced to buy power that could not be generated at Lake Oahe.
"They had to scramble and make purchases because I started cutting the system generation," Keasling said.
Keasling also said the agency stood to lose about $3 million as a result of lost energy. Water will still flow from Lake Oahe, after the water from North Dakota and Montana gets there. Barges in the lower Missouri River will not be affected by the order, Keasling said.
The judge's order won praise from Standing Rock Tribal Councilman Jesse Taken Alive who, along with the Yankton Sioux tribal members, has been trying to prevent looters from disturbing the burial sites.
"It's a step towards trying to resolve it," said Taken Alive. "At least the court system is listening to us in this matter."
"We know for a fact that there's a black market," Taken Alive said. "A lot of folks coming from out of state as well as in state are taking trips to the area. We do have tribal monitors out in the area, and they have seen them with remains, artifacts and antiquities."
Taken Alive said the tribe has been trying to get the corps to place walls around the burial sites or to bury the remains elsewhere.
While the corps has been resistant to requests from tribal descendants to find a permanent solution for the preservation of the graves, their wishes are not falling on deaf ears.
Terry Henrie, an aide for Senate Minority Leader Tom Daschle, D-S.D., attended the second round of negotiations between the Yankton Sioux Tribe and the corps in Fort. Randall Nov. 6. He later toured the White Swan site and said that situation will have far-reaching effects and is likely to set a precedent. "There are situations like this all over the country, and people will look at it."
Both tribes have discovered remains from graves that were supposedly moved before the Missouri River dams were built nearly 50 years ago.
Sam Weddell, Yankton Sioux tribal planner, and Lake Manager Tom Curran will work to cover the remains with rock before higher waters are released Dec. 7.
The corps will pay for an independent survey of the gravesite by engineer Mike Watson of Helena, Mont. The tribe had requested the second survey, which should be completed in one to two weeks.
It favored covering the graves and leaving the remains in place, while the corps preferred removal and reburial of the bones at a permanent site unaffected by water levels and soil erosion.
Covering the graves with rocks is considered a temporary solution, and both sides will continue working on a long-range solution.
Following nearly seven hours of the second meeting, in which the corps and the tribal members returned to the bargaining table after stalled negotiations, disagreements remained about how the remains should be protected.
A week ago, the corps began conducting a survey of the site using ground-penetrating radar and other tools to locate grave sites and unmarked burial grounds on and near the cemetery which was submerged until the water levels fell.
Frustrated by the minimal information collected in the radar survey, Curran said it "did not work as well as we had hoped. We had hoped to see a definition of grave shafts. It's not real clear what is out there."
One issue disputed by federal officials is the suggestion that graves at the cemetery weren't moved. However, there are headstones at some of the grave sites documenting the claims of tribal negotiators that some remains of ancestors buried in cemetery plots weren't moved.
Other tribes along the Missouri have discovered that contractors hired by the corps failed to move their ancestors.
Yankton Sioux tribal member Francis Hart said that when the remains began to surface, an older map showed the location of the grave sites, but it didn't document the burial of other descendants whose remains are scattered near the cemetery and the hills along the river.
"There is a map that was shown to us when that first happened. There were 400 and some names on it. Some of those names are very old," Hart said.
Bonnie Ulrich of the U.S. Attorney's office disputed that the graves present at the site were marked graves which were supposed to have been moved.
"There have been other remains at the site, but there is no reason to believe that they were marked graves. All the marked graves were moved," Ulrich said.
"Those that were marked and could be identified were moved," she told the group.
Tribal members voiced their doubt. Tribal negotiators noted there was clear evidence of marked graves.
"By going by that map, the corps would know where the remains were. I agree to disagree," Hart said.
Ulrich said the remedy is removal of the remains and repatriation. It would prevent looting, "but you people say you don't want it."
Hart said she understood some of the remains may have shifted because of erosion and fluctuating water levels, but she had her doubts about the corps' ability to identify the unmarked grave sites with certainty.
"I don't think over time and over the years we're going to be able to detect all of them. I believe the negotiating team with the descendants came to the consensus we wanted to cover them up," Hart said.
Ultimately tribal members want the corps to build a dike, berm, riprap or other structure to hold back the water and keep the remains in place, but Curren said there would still be seepage.
Corps officials said there were no funds in the budget to pay for such a project. They said tribal members would have to go to Congress and lobby on their own behalf for the funds to support any long-term measure to cover the burial sites.
Col. Mark Tillotson, Omaha District Commander, said removing and reburying the remains would provide the greatest peace of mind for the descendants.
"With the erosion (of the shoreline), we can expect to be back," he said. "We don't want to be back year after year with the same remains. By moving the remains to higher ground, it would end the suffering for the relatives."
The Standing Rock Sioux Tribe has personnel who patrol the burial sites and the corps could provide funds for such patrols, Hart said.
Tillotson said the security was adequate at White Swan because corps personnel can keep watch from Fort Randall dam. The tribe could conduct its own watch, as it did last year, Tillotson said.
While some tribal members criticized corps security, particularly with fishing and scuba diving in the area of the graves, others suggested the sites were still vulnerable to grave robbers, even in the worst of weather conditions.
A patrol has been set up along the banks of the White Swan Bay to watch over the burial sites. Three men who agreed to patrol the area braved blowing snow and falling temperatures the night of Nov. 6 when a storm hit the area.
Mary T. Wynn, an attorney representing the tribal negotiating team, warned that the two groups would have to come to terms and file reports with the judge. Without the input, she said, the judge could simply impose his order for how the remains should be handled.
"He wants a written report that sets forth an agreement between parties as to the timetable, what schedule is going to be followed this year, the depth if the remains are buried on site or the remains are covered with something, the location and the method of the reburial of any exposed remains at or near the old St. Phillip's graveyard, as well as any other areas of disagreement between the parties.
"We are set up on a time frame and when the judge issues an order of that nature, it usually means that if you can't come to an agreement, the judge will make an agreement in the form of a court order," she said.
Members from the Ponca Tribe of Nebraska planned to meet in Niobrara to discuss the issue because they say they have an interest in the remains since their tribe also occupied the area.