Tribes want state out of cultural resource decisions

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RAPID CITY, S.D. - The Missouri River experiences huge fluctuations in
water levels and with six earthen dams that also rise and fall on cue from
the U.S. Army Corps of Engineers, many artifacts, human remains and
cultural items are exposed along the banks.

Federal law protects these funerary and cultural items in some cases and
when looters cruise the river and find objects it is uncertain who has
jurisdiction, the tribe, the state or the federal government.

Many of the items and graves have been there for centuries. Villages were
moved to higher ground when the reservoirs were flooded in the late 1950s
and early '60s. The U.S. Army Corps of Engineers manages the dams and is
responsible for the protection of the cultural sites, according to a large
Master Manual and Programmatic Agreement that was recently signed by 16 of
the tribes in the region or whose ancestral lands lie in the river basin.

At question is an act forged between the federal government, the state and
two of the tribes called Title VI or the Mitigation Act. The Act returned
land to the state of South Dakota and the Cheyenne River and Lower Brule
Sioux Tribes. It was land above the high-water mark on the reservoirs that
is not used by the Corps. But the state will take over control of their
portion in 10 years and the tribes are worried. Historical relations
between the state and the tribes are proof that tight regulations need to
be in place.

"We have a concern over Tide VI lands, it is the Corps' responsibility, the
state can't be trusted," said Albert LeBeau, of the Cheyenne River Sioux
Tribe Historic Preservation office.

He said the land transferred to the tribes and held in trust by the federal
government is protected, but the land transferred to the state is
questionable. Ninety percent of the land in question has burial sites on
it, LeBeau said.

"State law on cultural resources is not good," he said.

The Yankton Sioux Tribe, not a signatory to the most recent programmatic
agreement, had trouble with the state when a burial site was uncovered
during reconstruction of a state recreational site. The case went to
federal court. A federal agency is responsible to adhere to three laws that
govern sacred, funerary and cultural sites, the state is not.

"We can't delegate the state responsible to take charge. We can craft an
amendment to Title VI and direct the state to abide by federal law," said
Larry Janis, cultural affairs director for the Omaha District.

Because of some problems with the laws, LeBeau said, there is a good
possibility of lawsuits against the state.

A problem also exists in enforcement. There is no plan in place that
delegates jurisdiction. The Corps and the tribes are now in the process of
drafting such a plan. The programmatic agreement took two years to
finalize, and an enforcement plan could take some time and a new
programmatic agreement for the Title VI Act could take even longer.

The programmatic agreement in place takes the state transferred lands into
consideration, but when the final transfer takes place a new agreement will
be needed. During the recent consultation process it was the consensus of
the group that an amendment to the current agreement could serve to cover
the Title VI lands.

When land was transferred to the state the Corps maintained the trust
responsibility over the cultural resources. That didn't stop federal
litigation with the Yankton Tribe.

The Corps is to hold the trust responsibility in perpetuity, according to
the Corps legal advisors.

The federal laws apply to federal agencies and the Corps is a federal
agency with trust responsibility, according to Jim Picotte, Cheyenne River
Sioux Tribe Historic Preservation officer.

The state can claim that resources on the land it receives will fall under
state jurisdiction and not applicable to some laws, Picotte said. That's
why the Corps has to be the federal agency that will maintain the
resources.

At stake are thousands of cultural and funerary sites along the river. In
the spring with runoff at the highest, and with erosion along the banks are
other times of the year, the cultural and sacred sites are exposed. Human
remains fall into the river only to be picked up by looters who either
display them on shelves in their homes or they are found on the black
market.

"How seriously does the state take its responsibility" Picotte asked. "Did
the [State Historic Preservation Office] consult with us - no?

"To date the [Department of Transportation] hasn't consulted with our
office over projects in the state," he said.

Picotte used as an example the ongoing construction of a four-lane highway
that will extend from Rapid City to the Nebraska border over which there
has been no consultation. The highway will run on the west edge of the Pine
Ridge Reservation, through Lakota treaty territory, across the Cheyenne
River, which is known as a cultural area that contains many grave sites.

When the Yankton Sioux Tribe had the problems with the state over the area
known at North Point, the two governments entered into an adversarial
relationship over human remains. It took the federal court to resolve the
issue and the State Attorney General's office asserted that the tribe had
planted the human bones.

Faith Spotted Eagle, Yankton Sioux Tribal Cultural Affairs negotiator,
asked whose responsibility it was to force the state Game, Fish and Parks
office to be aware of the cultural resources.

Trust responsibility can't be given over to the state, there will be
lawsuits, and the U.S. Army Corps of Engineers operates on a fixed budget
for such matters, which runs out toward the end of each year without all
projects completed.

Janis has gained the respect of many of the tribes in the area, and with
the Corps history of transferring people, the tribes are not sure who might
eventually replace him. They want assurances that laws will be adhered to
by the federal government and the state, Picotte said.

Any action that is considered an undertaking by the Corps is under federal
rule and should be subject to consultation with the tribes. That includes
the lowering and raising of the reservoirs, said Tim Mintz, Tribal Historic
Preservation officer for the Standing Rock Sioux Tribe. The SRST did not
sign on to the original programmatic agreement.

Mintz said there were many problems with the programmatic agreement, one of
which is a 40-year agreement, which requires the entire programmatic
agreement to be renegotiated. Other tribes also cite the 40-year clause as
a stumbling block. No discussion took place at the most recent consultation
over the time line.