Copyright © 2000 NLThomas
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The Yankton Sioux Tribe has just discovered that the U.S. Army Corps of Engineers has been in violation of Federal laws for years, in regard to the remains of the ancestors at the White Swan Burial Site. These laws include, in addition to Native American Graves Protection and Repatriation Act (NAGPRA), the National Historic Preservation Act, 16 USC 469, Executive Orders (13007 Indian Sacred Sites, May 24, 1996 and 11593), the National Environmental Policy Act, the Archeological Resource Protection Act of 1974, and possibly other agency specific legislation which may also apply.

The Tribe has sent a letter to the Corps, signed by Chairwoman Madonna Archambeau, demanding that the Corps comply with all federal laws to protect these remains in the next thirty days. The letter says, "This is to notify you that the Yankton Sioux Tribe considers your agency out of compliance with Sections 106 and 110 of the National Historic Preservation Act (NHPA) with regard to its conscious fluctuation of water levels in the Missouri River while knowing of the White Swan Burial Grounds, an important cultural site. It is the Tribe's understanding your agency has repeatedly engaged in a federal undertaking by fluctuating the pool of Lake Francis Case knowing the above site was present and, in doing so, caused damage to this important cultual site, and the human remains of tribal ancestors and other articles of archaeological significance." By raising the water level, there will be additional damage to the resources at the site. Once the water started rising, casket hardware was seen lying scattered on the surface of the burial grounds, in addition to impressions of remains, edges of coffins still showing through the sand and other items of archeological significance.

The letter continues, "It is the position of the YST that your agency has failed to consult with the Tribe as required by Section 106 of the Act and has failed to take measures to protect the site as is required by Section 110...It is the Tribe?s position that the Corps actions also do not comply with the key Executive Orders or the requirements of the National Environmental Policy Act and other applicable federal statutes."

"The Tribe believes the Corps is not meeting their legal obligations; they are only doing what the Tribe sued them about. The Corps is forcing the Tribe to spend a lot of money to get them to meet their legal obligations. It shouldn't be that way", said tribal attorney Mary Wynne. "This is unfair for the Tribe to have to pay legal fees to force the US Army to comply with federal law", she continued.

"This process has been enormously burdensome for the tribe to pursue this matter, making the Corps comply with the law. The YST is a small Tribe with limited resources, high unemployment, low average annual income per capita, and tremendous social needs", said Archambeau.

"We are a small tribe with limited resources, but great resolve, in order to make the Army comply with the laws that protect the historic resources of all people in the United States", said tribal member and White Swan descendant Faith Spotted Eagle. "It is apparent that the Army is not willing to comply with the law."

The Archeological and Historic Preservation Act of 1974, AHPA, requires notification to the Secretary of the Interior of any dam construction and if archeological resources are found, the recovery or salvage of them. AHPA also provides for the preservation of historical and archeological data, including relics and specimens, which may be lost or destroyed as a result of 1) flooding, building of access roads, or 2) any alteration of the terrain that might be caused as a result of any federal construction project of federally licensed activity or program.

"Every year that the water of Lake Francis Case covered the remains, the Corps may have violated federal law, because they knew that the site was there", said Wynne. There are also possible violations of 36 CFR 800.5 A (2) vii (Regulations with regard to NHPA) concerning adverse effects and the transfer, lease or sale of properties containing protected remains or relics without a long term plan for preservation of the property.

"To say the least, the Corps actions in this matter are questionable, possibly illegal, certainly shameful. The Corps has an affirmative responsibility under several federal statutes to work with Native Americans and find mutually satisfactory solutions when tragedies like this occur. They also have legal responsibility to take into account the effects of their actions by consulting with Tribes, the State Historic Preservation Officer, and the Advisory Council, and they didn?t do it. It's almost as if the Corps was daring someone to take them to court", said Program Analyst Alan Stanfill of the Advisory Council on Historic Preservation, Denver Regional office.

The Executive Director of the Advisory Council is a presidential appointee, and the Advisory Council is investigating the matter, as is the State Historic Preservation Office. "I'd like to think this could be a catalyst for change in the cultural resource management of the Corps. It happens over and over again. Not only in reservoirs, but all over the country. They have no adequate program for administering situations like this", he said.

Steve Littlefield, South Dakota State Historical Society Review and Compliance department said, "Essentially there is a section 106 violation, and I don't think anyone is going to disagree with that." He verified that he has not received formal notification to invoke the protections of the NHPA from the Corps as is required by law. If the Corps removed the remains without a plan, then they are in violation of 106, the Tribe maintains.

"During the negotiation process, Corps officials repeatedly pressured the Tribe to hurry up the collection of the remains. They even sent a letter to the Tribe, after another agreement was already made, speeding up the process. Before collection could even begin, under the law, a mitigation plan is required for the site, with agreement by several parties. We requested official consultation to work on this plan, but were denied. Then they told us to hurry up and pick up our relatives", said Roxann Spottedeagle, a White Swan descendant.

It has also been pointed out that the Corp has failed to develop a plan for preservation for the White Swan burial grounds, the human remains and the artifacts located there. The Corps has been repeatedly given notice that they are out of compliance with an agreement they signed in 1993 with State Historic Preservation Officers from Montana, North Dakota, Nebraska, and South Dakota. They have either refused or failed to take corrective measures to meet their responsibilities under this agreement.

The letter from the Tribe is putting the Corps on 30 day notice. "We are demanding that the Corps comply with not only the federal laws, but also the programmatic agreement the Corps made with the Cultural Historic Preservation Officers", said Wynne. "Please notify the Tribe within 30 days of what measures have been taken to bring your agency into compliance with NHPA and other applicable law. As part of that effort, the YST requests that your agency convene a meeting between the Consulting Parties concerning the White Swan Burial Grounds within 30 days of your receipt of this letter."

"It is the Tribe's understanding, based on your agency's failure to protect historic sites and engage in required consultation, that these issues may well be much broader than the White Swan site. Therefore, it may also be appropriate to meet with representatives from other tribes with continuing interests in historical sites along the Missouri River, including but not limited to the Rosebud Sioux Tribe and the Oglala Sioux Tribe", concluded Chairperson Madonna Archambeau in the letter.