Tribal graves at risk on private land

By LEE WILLIAMS
Argus Leader
6/23/02

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 approached 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 was 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.

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