Copyright © 2000 NLThomas
All Rights Reserved

The Yankton Sioux Tribe has recently discovered that the U.S. Army Corps of Engineers has likely been in violation of federal law for years in regards to the remains of ancestors at the White Swan Burial Site. In a letter dated January 27,2000, the Tribe demanded that the Corps comply with all federal laws to protect these remains. According to a letter sent to the Commander Mark Tillotson of the Corps by YST Chairwoman Madonna Archambeau, "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 with regard to its conscious fluctuation of water levels in the Missouri River while knowing of the White Swan Burial Grounds". The letter continues, "Corps actions also do not comply with the key Executive Orders or the requirements of the National Environmental Policy Act and other applicable federal statues".

"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.

In a letter dated February 1, 2000, to State Historic Preservation Officer Jay Vogt, Candace Gorton, Chief Environmental and Economics Section, Planning Branch of the Corps of Engineers denies that they are in violation of Section 106 of the National Historic Preservation Act. In addition, the letter fails to address the other laws they are accused of violating, among them the 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.

"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. "I'd like to think this could be a catalyst for change in the cultural resource management of the Corps", Stanfill continued. "It happens over and over again. Not only in reservoirs, but all over the country. They have no program for administering situations like this", he said.

"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 YST Chairwoman Madonna Archambeau.

"We are a small tribe with limited resources, but we have great resolve 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."

Steve Littlefield of the 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 from the Corps as is required by law. If the Corps removed the remains without a plan, then they are in violation of 106, said tribal members.

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.

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 [the COE] agreement and has either refused or failed to take corrective measures to meet the Corps responsibilities under federal law.

With the letter, the Tribe put the Corps on 30 day notice to begin complying with federal law and the programmatic agreement the Corps made with the Cultural Historic Preservation Officers of Nebraska, North and South Dakota and Montana.

The Tribe is looking at options and possible remedies, including congressional action, and is engaged in active negotiations on both the federal, state and local levels, regarding this matter. In the upcoming week there will be meetings at the site with the National Trust for Historic Preservation and the State Historic Preservation Office. Already, meetings were held in Pierre with legislators and policymakers, including the Governor, to discuss the issue. Congressional offices have also been very supportive.

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, the letter concluded.