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Court won't halt transfer of burial sites to state

A federal appeals court on Tuesday rejected a South Dakota tribe's attempt to halt a land deal affecting sacred sites, burial grounds and cultural artifacts along the Missouri River.

In a unanimous decision, the D.C. Circuit Court of Appeals rejected the Crow Creek Sioux Tribe's case as unfounded and premature. A three-judge panel concluded that the federal law authorizing the transfer would protect the tribe's cultural heritage.

"In conclusion, the tribe has not suffered an injury in fact stemming from the transfer of lands," wrote Judge David B. Sentelle for the majority. "The only harms it alleges are speculative and hypothetical, not actual or imminent."

The case stems from a law ushered through Congress in 1999 by Sen. Tom Daschle (D-S.D.) and backed by then-governor Bill Janklow (R), now a Congressman. Called the Water Resources Development Act (WRDA), it mandates the transfer of up to 150,000 acres of federal land to the state and to the Lower Brule Sioux Tribe and the Cheyenne River Sioux Tribe.

The Crow Creek Sioux Tribe contends the transfer will diminish enforcement of historic preservation, archaeological protection and repatriation laws, which apply to federal, but not state land. The tribe argues that any discovery of artifacts, remains or other items, could create confusion and conflict.

That's what has happened at another other location along the Missouri River. A high-profile case involving the Yankton Sioux Tribe has led to protests against the state, which is turning a tribal burial site into a camp site. A federal judge is appointing a special master to ensure that remains and artifacts uncovered by state workers will be reburied properly.

The appeals court yesterday made note of that case, but said the Crow Creek Sioux Tribe failed to show how it was being harmed by the transfer. "The tribe presents no reason to believe that enforcement will diminish," Sentelle wrote.

The court also pointed out that the WRDA requires the U.S. Army Corps of Engineers to maintain responsibility over cultural resources. This would require the Army Corps, for example, to repatriate any remains discovered on the land to the tribe.

The Rosebud Sioux Tribe of South Dakota and the Mandan, Hidatsa and Arikara Nation of North Dakota have intervened in the case. In addition to the burial site claims, the tribes allege the transfer violates their treaty rights.

The land in question used to be part of the Crow Creek Sioux Reservation. But it was taken by the Army Corps as part of the massive Pick-Sloan waterworks project of the 1950s.

Get the Story:
Crow Creek Tribe v. White (June 16, 2003)

Relevant Links:
Army Corps of Engineers, Omaha District - http://www.nwo.usace.army.mil

Related Stories:
Appeals court debates S.D. land transfer (03/18)
Appeals court hears Sioux land transfer case (3/17)
Judge: S.D. tribe not consulted (7/1)
S.D. tribe pushes return of disputed remains (06/12)
Tribe opposes Missouri River land transfer (8/13)

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