SIOUX FALLS, S.D. ? The Yankton Sioux Tribe won a temporary restraining order against any more construction work on a state-controlled area where human remains indicating a burial site were unearthed in May and early June.

The North Point Recreation Area near Pickstown is one of many sites that reverted to the state of South Dakota this spring under the controversial "Mitigation Act." Although two major Lakota governments supported the measure, other tribes and many people vehemently opposed it because it gave the state control of Lakota treaty land originally taken by the U. S. Army Corps of Engineers for its massive dam projects.

U.S. District Court Judge Lawrence Piersol supported the arguments submitted by Yankton tribal members that the entire area on the Missouri River and north of Fort Randall Dam contains burial sites that have been there for hundreds of years.

A lawsuit filed on June 5 asked for the restraining order in addition to a finding that the transfer of land from the Corps of Engineers to the state of South Dakota was unconstitutional.

The state of South Dakota received the land from the Corps as part of The Lower Brule Sioux, Cheyenne River Sioux and South Dakota Terrestrial Protection Act, or the Mitigation Act as it is commonly called. This congressional action allowed the transfer of U.S. government excess shoreline land along the Missouri River to the state and the Lower Brule and Cheyenne River Sioux tribes against the wishes of other tribes in the area. Judge Piersol didn't rule on that issue.

During a three-day trial in the Sioux Falls federal court, South Dakota Deputy Attorney General John Guhin argued that much of the area was disturbed by people. He drew the wrath of Lakota counsel and an incredulous question from the judge by implying that some of the remains may have been planted in the area.

"Are you suggesting the skulls are a setup?" Judge Piersol asked Guhin during his June 7 argument.

"They had to get there somehow," Guhin replied.

Tribal officials expressed shock and emotional distress. Ellsworth Chytka, leader of a group of tribal members that filed the lawsuit, said he almost cried over the accusation.

Faith Spotted Eagle, director of the Braveheart Society, said she was offended by Guhin's accusatory comments. Many tribal members said they were insulted by the state's position in the early stage of the trial.

The state used dirt from the burial site to fill in areas in other parts of the recreational area. Judge Piersol also prevented the state from moving the dirt used as fill in those areas and said the world wouldn't stop if the camping area was not expanded.

Michael Fosha, assistant state archaeologist said when he arrived at the site on June 4 some of the remains were disturbed. Chytka told Indian Country Today on June 4 that he felt that Fosha accused tribal members of planting and disturbing the remains.

Fosha, however, told the court that it was his opinion that more remains will be found in the area. He did say that soil surrounding one of the skulls was different from soil that surrounded it.

On June 4, tribal members said they arrived at the site to find two skulls protruding from the dirt on the spot that was dug up for landfill. The same tribal members were at the site the night before and did not see the skulls. The two skulls and other remains were exposed, they said, because construction did not stop at the site as is required by the Native American Graves Protection and Reconciliation Act.

The partial remains of three individuals were found at the site on May 14 and removed from the site. Corps of Engineers Archaeologist Sandra Barnum said she made the decision to remove them because the bones were exposed to the elements and she wanted to protect the remains.

Tribal officials were not notified until they received a letter from the state dated May 24. Robert Mercer, spokesman for Governor William Janklow, said the letter was sent when the remains were found to be American Indian.

The lawsuit asserted that NAGPRA was violated because the remains were moved without consultation with the tribe. The state maintains it will study the remains to find out which tribe they belong to. The Yankton Sioux, the Ponca of Nebraska and the Omaha tribes have been notified of the find.

The Yankton Sioux Tribe notified the Corps and the state, and officially claimed ownership of the remains.

Chytka said he told the Corps and state months ago that the region where the North Point recreation area is located has many burial sites. He said each ridge in the area may contain the remains of Yankton ancestors.

The Yankton Sioux Tribe asks the return of those remains that were removed. It called for the area to be turned over to the tribe so that it could become a sacred ceremonial area for tribal members, without interference from people using the area for recreation.

Tribal council member Glenn Drapeau said, "It is unnatural for our people to have remains unearthed and to be trampled on by heavy equipment, by other individuals, because this site is sacred."