Judge faults Corps for handling of remains

FROM THE ARCHIVE

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MONDAY, JULY 1, 2002

A federal judge on Friday extended a ban on construction work at a South Dakota recreation site, citing the federal government's failure to comply with a law designed to protect ancestral tribal remains.

U.S. District Judge Lawrence L. Piersol issued his preliminary injunction over the objections of the state and the U.S. Army Corps of Engineers. Both parties claimed they were doing everything to protect the North Point Recreation Area, a site near the Missouri River where bones and artifacts were uncovered by contract workers on May 14.

"The court finds there is a significant threat of irreparable harm," wrote Piersol in his 30-page decision, "if there is further exposure of human remains or loss of remains or funerary objects."

Responding to court testimony provided during a three-day trial last month, Piersol also ordered the state to provide access to the site for ceremonial and religious purposes. Tribal member Glenn Drapeau said he was prevented from entering the area after the bones were discovered.

Piersol did not rule on the tribe's request to return the remains of at least four adults and one juvenile. But he did criticize the Army Corps for failing to follow its duties under the Native American Graves Protection and Repatriation Act (NAGPRA).

Specifically, he said the Corps did not adequately protect the remains once they were uncovered. Instead, the state was allowed to send the bones and items to Rapid City, ostensibly to protect them from theft and destruction.

Blame was laid on Sandra Barnum, a Corps archaeologist. According to the ruling, she failed to initiate consultation required by NAGPRA.

"Barnum clearly has an obligation to at least notify the tribe of the inadvertent discovery of human remains and funerary objects," Piersol wrote. "She did not so notify the tribe."

Piersol noted that the state and the Corps should have known that remains uncovered might be related to Sioux, Omaha or Ponca tribes, which traditionally resided in the region. During the trial, Barnum and state officials defended their lack of consultation by claiming the origin of the bones was in doubt.

"The court does not find this argument credible in light of Barnum's knowledge of the tribe's claims that their ancestors are buried in the North Point area," the ruling stated.

Piersol's injunction will stand until the tribe's lawsuit works its way through the courts. In addition to seeking repatriation, the tribe wants the transfer of the North Point land from the Corps to the state declared illegal.

The tribe, however, can effectively win its case even without more court proceedings. Since Piersol ordered NAGPRA compliance, construction of new camping spots, roads, parking lots and other facilities at the recreation site can be permanently stopped should the remains be connected to the tribe and reburied there.

Piersol recommended the parties mediate to resolve the dispute.

Relevant Documents:
Yankton Sioux Tribe v. U.S. Army Corps of Engineers, et al. (6/28)