Judge rules against Yankton Sioux Tribe: Sacred ground to become campground
PICKSTOWN, S.D. - The state of South Dakota has been given a green light to turn sacred burial grounds into a waste dump for motor homes and campers and a place to deposit fish entrails.
U.S. District Judge Lawrence Piersol issued his opinion that allowed the state to put back some dirt that was used for landfill to the location where a burial site was exposed, also that some dirt moved from another location could stay and be the foundation for the waste dump.
Nearly a year ago the state was excavating dirt from a location on North Point Recreation area when human remains and other artifacts were found. The Yankton Sioux Tribe went to court to stop the excavation, but now with the tourist season and the Lewis and Clark bicentennial approaching the work must be done, and the judge said the state can proceed.
"These are not just bones. These are human remains. This is sacred ground," said Ellsworth Chytka, spokesman for the Yankton Sioux Tribe.
"Where is there justice for us? When will the rights of humans win out over money? This is not just a Yankton matter. What needs to be done is all Native Americans in South Dakota defend their rights to the sacred sites and manage the water," Chytka said.
"It's time for the Great Sioux Nation to come together."
The state, in testimony at trial, argued the recreational site does not now have adequate waste dumping facilities or a fish remains depository. The traveling season is approaching and the need is imminent, the state said.
Doug Hofer, director of the state's Parks and Recreation department said it would cost an additional $100,000 to move the dumping stations to another location. Construction had already started and the area has no means to handle waste at this time.
"I am sorely disappointed in the decision, but not surprised. I think the decision was based on money. The state claimed to make $3 million worth of improvements to recreation areas and they destroyed the waste dump at North Point, that was their defense, because of sanitary reasons," said Faith Spotted Eagle, Yankton Sioux Tribe member.
"They are crushing someone's spirit, but all they feel is money in their hands. I am finding the non-Native people on the street agree with us. The public has a different outlook than the agencies," she said.
There were three options for alleviating the problem, according to Jim Donahue, archaeologist for the state. One was to leave the areas as it was; another was to return the fill from the area with the highest probability of containing human remains to the original site and leave the other area alone or to return all fill back to the original burial site.
Donahue recommended removing only the fill area that contained the most human-remain articles. The plaintiffs, the Yankton Sioux Tribe, supported returning all the fill to its original location.
Another option, from the plaintiffs was to keep everything as it is and turn the entire area over to the tribe so it can treat it like a sacred site.
"There are burial sites all up and down this river. My grandmother told me about this site and we told the Corps of Engineers it would have a problem when the White Swan area was uncovered," Chytka said.
Just up the river is a sacred site for the Yankton Sioux called White Swan, an old community. When water levels lowered two years ago a cemetery was exposed and coffins came to the surface. Some were non-Indian graves, others American Indian. That issue has yet to be resolved.
Yankton tribal members, joined by treaty representatives from the Oglala Sioux Tribe and the Rosebud Sioux Tribe, held daily meetings to discuss what to do and decided an appeal would be filed.
Judge Piersol ordered that the state must provide the Yankton Sioux Tribe with written notice before any dirt was moved and the tribe would have seven days in which to prepare ceremonies and a possible appeal.
"The people are upset. They ask how the state can do this, how the state can build a waste dump on our ancestor's remains and build roads and have picnics. There is no respect for Native people," Chytka said.
"It would be different if we wanted to put a mall on one of their cemeteries."
He said he had been at meetings with the state Game Fish and Parks, where director John Cooper accused him [Chytka] of having a personal agenda, and that the state would not take the oral histories into consideration. Cooper said because of the ongoing litigation, he would have no comment.
The plaintiffs argued that the testing done on one of the piles of fill was not adequate, that out of a bucket of dirt from a front end loader only a shovel full was tested and turned up negative for remains.
Michael S. Burney, archaeologist for the plaintiffs told the court that testing of the fill area that showed a negative result was not adequate and that any removal of the dirt from the areas would further damage any remains that were present.
Judge Piersol, acknowledged the fact that the testing was only a sampling said there was little evidence to prove Burney's theory.
Judge Piersol found that there would be irreparable harm if construction of two of the areas were to continue. He did acknowledge that the testing was done by drilling test holes some 25 to 30 meters apart in the area where human remains were found, he said that more intensive testing in the area where no remains were found would be warranted. He did accept the state's testing results.
North Point, just to the north of Fort Randall Dam on Lake Francis Case, is the fifth most visited recreational site in South Dakota. It had approximately 231,000 visitors in 2001. The plans call for the construction of two 1,000-gallon holding tanks and one 2,000-gallon holding tank. Later this year lagoons will be constructed and much of the fill taken from the burial site was to be used for this construction.
When the construction started in June 2002, remains and funerary objects were exposed and removed to the state archaeologists' laboratory. At the time it was said that a few pipe fragments were found and some human bones.
Chytka said when they went to the lab to perform a ceremony they saw many human bones of a woman and child and a complete pipe. Arrowheads were also found. He said that the remains with the burial objects indicated that the woman was of high stature in the tribe at the time.
"There are people buried in those areas because they wanted to rest in peace and they say to heck with it and build a picnic area and build roads over the graves."
He said when the Corps of Engineers hold meetings with the sacred sites issue on the agenda; they have them in places that require travel for the tribal members. Chytka said members have no money to travel and then when they don't show up; the Corps argue that the Yankton Sioux Tribe have no interest in the issue.
"We didn't cause the problem, yet we are the ones that have to come up with the money to resolve it. It costs us a lot of money to travel to meetings and court hearings," he said.
"I appeal to Indian country. This case and these remains are not just a Yankton matter. All Native people at one time were one nation. Now we need to stand up and protect our history and culture and those that passed before us.
"You can pick up a dead eagle and go to jail. But you can pick up the skull of an American Indian and sell it on the Internet. Put us on the endangered species list and we will protect our own nesting sites," Chytka said.
The area along the Missouri River on the Yankton Reservation is a gold mine of sacred sites, elders assert. But the government, both state and federal can't protect them because there is too much money to be made from recreation, Chytka said.
"We won't take this lying down. It may get controversial. We will remind all the campers that come to this area that they are sleeping on the remains of our ancestors," Spotted Eagle said.