Mitchell
http://www.argusleader.com/news/Sundayarticle2.shtml
State applies double
standard, tribes say
By LEE WILLIAMS
Argus Leader
published: 6/23/02
Native Americans should be an early part of the process for dealing with
remains, they argue
In the late 1970s, a local developer wanted to build townhouses in western
Sioux Falls on property that contained a pioneer cemetery.
Farmers had purchased the five-acre Forest Home Cemetery, located west of
Marion Road and north of 26th Street, in 1880, but it had been abandoned for
decades.
A citizens' group challenged the building project, and the South Dakota Supreme
Court ruled that the cemetery should be left alone, its dignity as a burial
ground intact.
Indian leaders say cases such as that illustrate what they see as a double
standard in South Dakota over the treatment and preservation of burial sites.
Tribal members point to recent discoveries of human bones at a site known to
contain Indian burial mounds in Mitchell. A developer is building an apartment
complex on the property, and after the state archaeologist collected and
identified the bone fragments, work on the buildings continued.
Tribal members say the graves of their ancestors are in jeopardy across the
state because of a lack of respect shown to ancient burial grounds. They point
to several burial sites that have eroded, exposing human remains, along the
Missouri River and the court battles that have followed as Indian leaders try
to force the federal government to preserve and protect the sites.
"For years, under the guise of scientific research, archaeologists and
anthropologists have literally gone into every known sacred grave site in the
United States," said Vernon Bellecourt, principal spokesman for the American
Indian Movement. "Then we have the pot hunters who dig into our graves to get
at funerary objects, which they sell for profit. At construction sites across
the country, the desecration is rampant."
The dominant society in any part of the world has always had problems assigning
importance to the traditional culture and values of minority populations in its
midst, said Charles Abour-ezk, a Rapid City lawyer and adjunct professor at
Black Hills State University.
"I doubt that Indian remains are given less significance just because they're
tribal, but at the same time, there are prevailing prejudicial attitudes about
the importance of anything that might be linked to Indian culture," he said.
South Dakota has a law making it a felony to knowingly disturb burial sites.
But the law doesn't spell out requirements to research such sites before
beginning construction there. And there is no mechanism that allows cities or
counties to share archaeological information or maps pinpointing important
burial sites.
In Davison County, for example, law enforcement officials say that they patrol
the cemeteries in the area but do not do the same for Indian burial mounds.
They acknowledge that they don't know where the burial mounds are located in
the county.
Minnesota's approach
In Minnesota, county officials are the ones assigned to protect burial mounds
such as those uncovered in Mitchell.
"Each county is aware of the law, and the county attorney and the sheriff are
tasked with protection of burial mounds," said Joe Day, executive director for
Indian affairs for the Minnesota Indian Affairs Council, a quasi-legislative
body that serves as an intermediary between the Minnesota tribes and state
government.
Day, an enrolled member of the Leech Lake Band of Chippewa, said there have
been six prosecutions during the past 15 years for violating the law that makes
it a felony to knowingly disturb skeletal remains.
Once remains are discovered, local law enforcement officials call in the
Minnesota Bureau of Criminal Apprehension.
"If the BCA determines that the bones are more than 50 years old, they turn
them over to us," Day said.
The Indian Affairs Council also is the state agency assigned to oversee claims
under the Native American Graves Protection Act. The law allows enrolled tribal
members to determine the fate of their ancestors' remains.
In South Dakota, the state archaeologists, not the tribes, are the NAGPRA
coordinators.
"What it takes is a good relationship between the tribes and the state. That's
vital. It's so important," Day said. "I know your Governor Janklow. I know your
tribes don't have too much of a relationship."
When Indian graves were discovered last month in Mitchell, a state
archaeologist collected the remains, and construction was allowed to continue
days later.
Mike Fosha, the assistant state archaeologist who recovered the remains,
doesn't think South Dakota's system is unfair.
"We work on pioneer cemeteries quite often and move them," Fosha said. "Both
are covered by the same federal laws. We follow the law on all human remains."
State Sen. Ron Volesky, D-Huron, said the problem is not necessarily a double
standard being applied, but rather a lack of procedures to deal with
discoveries of Indian burial sites.
"What we have to do is convene a task force to establish rules, procedures and
guidelines as to how to best deal with this whole issue of remains and sacred
sites with regard to our Indian tribes in South Dakota," Volesky, an enrolled
member of the Standing Rock Sioux Tribe, said.
What's been missing in South Dakota's procedures, he said, is involvement by
the tribes.
"Why wait until we have all this controversy? Let's decide how we're going to
handle things in the future," Volesky said.
Sioux Falls board
The city of Sioux Falls has a citizens' board to help stave off unexpected
excavations of bones. The Sioux Falls Board of Preservation's mission is to
identify, nominate and protect archaeological sites. It consists of ten
citizens who are appointed by the mayor; one of them must be a trained
archaeologist.
The board identifies historic sites and, if they are suitable, nominates them
for entry into the National Registry of Historic Places. The board's
requirement to protect historic sites can take many forms, but it usually
begins with research.
City Planner Don Seten's small cubicle at City Hall is replete with maps,
survey reports and historical texts, some of which date back to the 19th
century or were written by early settlers to the state.
If needed, the preservation board contracts with archaeologists at Augustana
College.
"We're a resource for builders, if they want to check a site, or we can conduct
specific studies," Seten said. "Most of our work does not involve excavation of
human remains, but we have helped identify potential sites for prehistoric
remains."
Over the years, archaeological surveys have been completed on land near a
planned expansion of the Great Plains Zoo, along Skunk Creek and in eastern
Minnehaha County areas along the Big Sioux River and its tributaries.
Such efforts are steps in the right direction, tribal officials say. But they
say the continued disruption of Indian burial sites on private land points out
the problems.
"It's outrageous. How can they justify continuing to desecrate these sacred
areas?" said Bellecourt. "In general, we respect their cemeteries, but it's
obvious that there is a double standard when it comes to the ancestral remains
of indigenous people.
"What do we have to do, dig up Custer?"
Thanks to Ann Bates
http://www.argusleader.com/news/Sundayarticle1.shtml
Tribal graves at risk on
private land
By LEE WILLIAMS
Argus Leader
published: 6/23/02
Some knew about Mitchell burial mounds, but construction proceeded
MITCHELL - Yellowed shards of bone lie scattered in the loose soil and jut from
the side of a mound of dirt as crews pour footings and lay drainage pipes
nearby.
The workers are constructing a 16-unit apartment complex over what
archaeologists say is a centuries-old Native American burial mound. Remains of
two women and a man already have been identified and removed from the site, and
other bone fragments lying in the dirt around the construction area also could
be human remains. Hundreds of Native Americans lived in the area overlooking
Firesteel Creek on Mitchell's north side more than 700 years ago.
Federal laws protect Native American remains buried on public land, such as
those exposed in recent years along the Missouri River.
On private property, however, it is a different story. South Dakota law
prohibits knowingly disturbing a burial site, but no law - city, county or
state - requires a developer to find out if burial sites are located on a
parcel before digging there.
The Mitchell developers, Jim and Bob Porter, say they didn't know the remains
were buried on the 7.3-acre parcel they bought this spring. After a passerby
called the sheriff's office to report seeing bone fragments at the construction
site, the Mitchell police summoned the state archaeologist. He collected and
identified some of the bone fragments, then allowed the work to proceed.
"It's all been resolved. It's done," said developer Bob Porter, who owns P & H
Commercial Properties. "The problem's resolved. There's no more news."
Yet questions remain. The property's former owner, historians - even Mitchell
Mayor Alice Claggett - say it was common knowledge the property contained
Native American burial mounds. At least one archaeological map detailed and
named some of the mound sites.
"We've heard all along that there had been burial mounds there," Claggett said.
" There are a lot of mounds out there by the creek. That's where they settled."
Carol Courier, the previous owner of the property, said she hired an
archaeologist to survey the property and confirm the presence of the burial
mounds before listing the land for sale.
"I've known all my life that it's been a burial ground," she said.
"Archaeologists have been asking my family for years for permission to dig it
up. I certainly didn't hide it from anyone."
The discoveries at that site, as well as recent court actions brought by tribal
officials challenging the U.S. Corps of Engineers' handling of exposed Indian
remains along the Missouri River, have focused greater attention on the
protection of cultural and burial sites in South Dakota.
Still, Davison County and Mitchell law enforcement officials say they're
satisfied the developers are not violating the law. So work on the housing
project continues.
Peter Winham, an archaeologist with Augustana College, said even the presence
of a map noting the archaeological burial site in Mitchell could not have
halted the construction. State law would not have prevented activity there even
then.
"It's one of those things. Even though there's mounds in the area, if it's all
private construction, until someone actually hits something, there's nothing
you can do," Winham said. "Nothing could have stopped it beforehand."
Nothing, some Native Americans say, but a genuine respect for the dead.
"A tribal burial ground is no different than where they have laid popes and
cardinals to rest," said Ellsworth Chytka, a Yankton Sioux tribal member who
has worked to preserve burial sites along the Missouri River. "Nobody would
think of tampering with their remains because of the spirituality they
commanded. These are sacred grounds to us as Indian people. It's a place of
burial and a place of prayer. It's a place where we say the spirit is strong."
Mapping responsibility
There is no statewide map charting archaeological or Native American burial
sites available to the public in South Dakota, but smaller mapping projects
have been completed in Minnehaha County and other areas.
Historians say parts of the state, including the area along Mitchell's
Firesteel Creek, contain many such burial sites. As long as 1,500 years ago,
Indian tribes lived there near the water. The higher ground, or bluffs, was
used for burial sites.
Lyndon Overweg, Mitchell's assistant police chief, said the state archaeologist
gave him a map of the archaeological sites in the Mitchell area, including the
Porter property.
"They're historic, archaeologically significant sites," Overweg said. "There's
20-plus sites documented in the area."
Indian burial sites along the Missouri River have eroded over the years, and as
water levels on the river have dropped, bones and other funerary objects have
been exposed from Pickstown to Wakpala. The tribes have gone to court to force
the U.S. Army Corps of Engineers to protect the exposed sites. One such legal
battle over remains discovered at North Point Recreation Area near Pickstown is
scheduled to be heard in court in the next few weeks.
Court orders to protect other sites already have been issued.
But the responsibility for cataloguing burial sites and communicating their
locations to city and county officials is not clearly defined.
"The only thing we do here is keep track of local cemeteries. We know where
they're at, and we patrol to check to see that they're not disturbed," said
Davison County Sheriff Kim Moline. "As far as Indian mounds go, we've not done
anything with them. My office didn't know that there were so many out there."
Mitchell City Planner Neil Putnam said he also wasn't aware that burial mounds
were located on the Porter site. He said his office is not required to check
for archaeological evidence at new construction sites.
"If we are given information that something is there, then yeah, but in this
instance, we weren't," Putnam said. "We weren't aware they were there. We had
no indication they were there prior to construction."
History of the site
Courier, whose family owned the property for years, says she is surprised at
city officials' claims they didn't know about the Indian burial grounds.
"When I heard they thought the bones were from a murder mystery, I just died
laughing," Courier, 55, said. "Half the city knows there's Indian burial mounds
out there. Geez."
Courier first learned that the land contained human remains in 1963, when her
father was approached by an archaeologist who wanted to dig for artifacts.
"He wouldn't let them," she said.
In 1978, Courier's father and brother constructed a pole barn on the property.
They bored test holes before building to ensure they weren't disturbing any
remains.
Later that year, Courier said another archaeologist ap-proached her father.
"He still wouldn't allow any digging on the property," she said. "He was
adamant about that."
Courier moved to Arizona with her mother in 1991. She decided to put the
Mitchell property up for sale several years later.
On April 15, 1996, Courier offered to sell the parcel to the Lower Brule Sioux
Tribe in order to ensure the burial site was protected. The tribe refused the
offer.
In May 1997, Courier hired Legette, Brashears & Graham Inc., a Sioux
Falls-based groundwater and environmental engineering firm, to conduct an
assessment of the property. In a letter to her, Tim Kenyon, an associate with
the firm, advised Courier to hire an archaeologist to do a survey as well.
Courier then contacted Winham at Augustana College.
Winham noted several rises that didn't appear natural and found chipped stone
flakes, which indicated possible toolmaking in the area.
"There were rises, little hillocks," Winham said. "The suspicion we had was
that there could be something there."
Winham then found documents confirming that. A burial site on the property had
been plotted and mapped by an archaeologist before Courier's father purchased
the property in 1939. The site was named after the preceding owner, M.N.
Overgaard.
"There was a previously recorded site - the Overgaard Site," Winham said. "And
that was the Overgaard property."
Courier, who now lives in Sun Lakes, Ariz., said that over the years, she has
told many people about the buried remains.
In July 1998, Courier hired a Realtor, Kathy Mah of Century 21 in Mitchell, to
sell the parcel. She said she told Mah about the Indian burial sites but was
told not to worry about that.
Mah denies that.
"If I knew, I would have told everybody," Mah said. "I was surprised when I
heard that. I didn't know anything about it. If I did, I would have to tell."
The property was listed for one year but did not sell. Courier later signed a
second contract with Mah, and on March 28, the Porters' P & H Commercial
Properties bought Courier's land.
Others knew
In 1997, before Courier sold the property, she retained John Steele, a
Plankinton lawyer, to research the legality of a land sale involving burial
ground.
In a letter to Courier dated May 8, 1997, Steele wrote that under South Dakota
law, it is a felony to knowingly disturb human skeletal remains "unless you
have received permission from the state archaeologist."
Steele said he then contacted the state archaeologist, Jim Haug. In the letter
to Courier, Steele wrote, "Although the authority, by statute, is vested in him
as state archaeologist, he is an appointee, and works under the general
supervision of the Secretary of the Department of Education and Cultural
Affairs, who in turn, works under the Governor. It was clear from what he
(Haug) said that with any major burial ground he would take no action except in
consultation with the Secretary and the Governor."
Contacted earlier this week, Steele did not remember the specifics of that
conversation with Haug.
"I don't recall the exact conversation, but I am sure that if I put it in a
letter to Carol (Courier), it's what I was told," Steele said.
Haug said he's had no conversations with the governor about the Mitchell site.
"I can't pick up the phone and call the governor," Haug said. "We have a chain
of command in state government, and I follow it."
Gov. Bill Janklow's press secretary, Bob Mercer, also said Janklow hadn't
talked to the state archaeologist about the Mitchell site, and the governor
couldn't remember talking to the archaeologist about any particular site.
According to Mercer, Haug said his first notice of the Mitchell burial mound
situation was when police called his office last month. He added that Haug said
his records showed no mounds or burials at the location where the construction
activity discovered them.
Officials with the state Department of Education and Cultural Affairs and
Attorney General's offices declined comment on the Mitchell case, saying they
couldn't discuss it because they are involved in litigation on an unrelated
Missouri River Indian burial case.
Handling the discovery
In May, a passerby on an ATV saw a human skull at the Mitchell construction
site and called 911.
"We treated it immediately as a crime scene," said Doug Feltman, Mitchell chief
of police. "We shipped the remains to Brad Randall (Minnehaha County Coroner).
He told us they were very old and sent the remains to a guy in Kansas, who told
us they were centuries old."
Once that determination was made, Mitchell police released the site to the
state archaeologist.
Mike Fosha, assistant state archaeologist, collected additional bones from the
site and took them to his office in Rapid City.
Fosha said Firesteel Creek is known as a rich archaeological site.
"Every major tributary of the James River is one," he said. "We're very careful
with these, as far as construction activity, once we're notified."
Haug said Fosha acted properly.
"Mike (Fosha) went around with them and showed them where they could and
couldn't dig," Haug said.
In his report, Fosha recommended that the Porters hire an archaeologist and
have one present during the excavation. He doesn't know if they followed his
advice.
Fosha said he will contact the tribes in the Dakotas to tell them about the
remains discovery, as required under the Native American Graves Protection Act
(NAGPRA).
He said it's too early for him to determine a tribal affiliation, so he
classified the remains as "Woodland Indians."
A tribal anthropologist says the remains could belong to any of a number of
tribes that frequented the area.
"They could be affiliated to the Dakota or Arikara or Hidatsas, but either way,
they're covered by NAGPRA, and they should be protected," said Bronco LeBeau,
an anthropologist and historian for the Cheyenne River Sioux Tribe.
Under NAGPRA, tribes can make claims to retrieve Indian remains and artifacts.
"But for us as Indian people, it's not important who they're affiliated with.
We believe we are all affiliated," LeBeau said. "To determine which tribe
should submit a repatriation claim has to be a tribal decision, made amongst
the tribes. This is not a Corps of Engineers decision or a state decision. This
is a decision that should be made by the tribes themselves. We do it all the
time."
The discovery also has prompted Mitchell city officials to try to change the
process to determine the presence of burial mounds or archaeological sites on
private property.
Putnam said he will meet with the state's office of history to try to
coordinate what the two offices can do to avoid such problems in the future.
Mitchell currently has more than a dozen construction projects planned. "A
thing like this makes us more aware of the potential for similar situations,"
he said. "We have to come up with a strategy to deal with a situation like
this, if and when it arises again."
But Carl Koch, Mitchell city attorney, said he doesn't think it's the city's
job to set up a process for identifying and protecting burial sites.
"I don't know that those things are a function of city government," he said. "I
think they're a function of federal and state law."
He also disputes Courier's claim that it was common knowledge in Mitchell that
the Porter development site included graves.
"I never heard that, not ever," he said. "We know that there are remains in the
Mitchell area, at the Indian village site."
The Mitchell Prehistoric Indian Village, a popular tourist attraction which
includes the Archeodome, is located a half mile from Courier's former property.
The Davison County State's Attorney's Office declined to discuss the Mitchell
incident, but Moline said he was told that no charges are expected.
He is satisfied the developers did not know the remains were buried there.
"At this point, with the involvement of the police department, coroner and
state's attorney, we've decided that those folks were unaware," Moline said.
Thanks to Ann Bates
Friday, May 24, 2002
http://www.yankton.net/stories/052402/new_0524020012.shtml
Archaeologist: Bones Found In At Mitchell Site Were From Ancient Burial Ground
MITCHELL (AP) -- There are as many as 12 ancient burial mounds at a Mitchell
construction site where a human skull and leg bone were found Sunday, an
archaeologist said.
Michael Fosha, the assistant state archaeologist with the South Dakota State
Historical Society, finished his investigation Wednesday and said he believes
the human remains belong to American Indians who lived along Firesteel Creek
about 1,200 years ago.
''My guess is going to be somewhere between A.D. 700 and A.D. 900,'' Fosha
said.
After looking at maps and examining the terrain around the construction site,
Fosha said he estimates that there may be as many as 12 burial mounds in the
two-block area around the construction site.
The bones were found Sunday afternoon when someone on an all-terrain vehicle
spotted a skull just east of Rozum Motor Co. on the north end of town. The
resident then notified the Mitchell Police Department.
In the first half of the 1900s, the location of many burial mounds around
Mitchell were documented, Fosha said.
''They were able to identify those that were most easily discernible from a
distance,'' Fosha said. ''Mounds that would have been very low earthen mounds
wouldn't have been discernible from a distance.''
Thanks to Ann Bates
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Photograph--Alfred Bone Shirt Sr. wearing a peace medal.