Argus Leader
June 12, 2002
"A federal court judge granted a temporary restraining order Tuesday that halts further excavation at a site near the Missouri River where human remains were unearthed last month. After three days of testimony, Judge Lawrence Piersol rejected the U.S. Army Corps of Engineers and the state of South Dakota's repeated requests to dismiss the Yankton Sioux Tribe's request for a temporary restraining order. The tribe filed the lawsuit last week. It also wants Piersol to declare unconstitutional the recent transfer of shoreline property from the federal government to the state. Bonnie Ulrich, assistant U.S. attorney, argued that federal and state officials are following every step of the Native American Grave Protection and Repatriation Act.
Ulrich added that work at the site has been stopped since last week. She also argued that moving bones and artifacts, which were unearthed May 14 at the North Point Recreation Area near Pickstown, was done to protect them. "There's nothing to stop," Ulrich said. "There's no showing of irrefutable harm." Piersol also stopped workers from moving dirt taken from that site to be used for fill at a campground registration area and a sewage dump station. "North Point has been there a long time without expanding its camping area," Piersol said. "The world isn't going to stop on that." Several supporters of the Yankton Sioux Tribe attended the proceedings and expressed relief at the outcome. "We got everything we wanted except for the return of funerary objects," said Mary Wynne, lawyer for the Yankton Sioux Tribe. "We certainly are glad. There's not going to be heavy equipment to crush bones out there again."
The restraining order is in effect until June 28, at which time Piersol is expected to rule on a preliminary injunction. The injunction could stop all work at the site until the lawsuit is settled. In the meantime, the state has agreed to provide security at the site for another 30 days. Piersol also said that the harm to the tribe outweighed the harm to the defense because of the religious significance the remains hold to them. He added that members of the tribe should not be excluded from going to the site for religious activities.
On Tuesday, lawyers for the state and the corps called witnesses who testified that they followed procedure when they removed three bodies from the site and shipped them to a secure, climate-controlled room in Rapid City. Michael Fosha, assistant to the state archaeologist, testified that bones at the site were disrupted by humans when he viewed them June 4. Fosha, who specializes in soil, said the soil around one of the skulls he observed was different from the soil surrounding it. "It was like the soil had been moved around them," Fosha said. "Someone had disturbed the site. The color of the dirt ... the placement of the dirt."
Fosha also testified that he felt there were more burial sites in the area. "At the present time, it's my initial feeling that additional burial sites will be found," Fosha said. "This is a location where numerous individuals were buried." Sandra Barnum, staff archaeologist for the Corps of Engineers in Omaha testified that she removed at least three individuals and several artifacts from the site. She said she moved the remains because they were loose and she was afraid they would be harmed by the elements or stolen. Workers hired by the state to remove fill dirt at the recreation area uncovered funerary objects and bones thought to be the remains of two children and a woman last month. State officials had the remains transported to Rapid City, saying they first thought the remains were not Native American.
Gov. Bill Janklow's press secretary, Bob Mercer, has said the state notified the tribe of the remains after determining they were Native American. Tribal members have said the transfer of the remains without notification violates federal law designed to protect cultural and religious sites such as burial grounds. They have asked that the remains be returned and reinterred. The corps is responsible for handling Native American artifacts and remains along the Missouri River, even though the land was transferred to the state earlier this year. After Piersol made his ruling, members of the Yankton Sioux Tribe rejoiced and reflected on the decision. "I think the irrefutable harm part was a real point to hear," Faith Spotted Eagle said. "I appreciated the recognition."
Tribal member Judy Drapeau was worried about how Piersol would decide, but when she heard the decision, she was overwhelmed with joy. "I'm elated," Drapeau said. "It's stopping the excavation. I'm glad we go home and know that they're okay for now." Ulrich and John Guhin, South Dakota Deputy Attorney General, declined comment.