Yankton Sioux Tribe v. Army Corps of Engineers, No. Civ. 99-4228.

Decision Date10 January 2000
Docket NumberNo. Civ. 99-4228.
Citation83 F.Supp.2d 1047
PartiesYANKTON SIOUX TRIBE, and its individual members, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; Joe N. Ballard, Chief Engineer, Army Corps of Engineers; Tom Curran, Operations Manager, Army Corps of Engineers Fort Randall Project; and John Doe, past Chief Engineer, Army Corps of Engineers, Defendants.
CourtU.S. District Court — District of South Dakota

Mary Turgeon Wynne, Okanogan, WA, for plaintiffs.

Bonnie P. Ulrich, U.S. Attorney's Office, Sioux Falls, SD, for defendants.

MEMORANDUM OPINION AND ORDER

PIERSOL, Chief Judge.

The Yankton Sioux Tribe, a federally recognized Indian Tribe (the "Tribe"), brought this lawsuit to protect what appear to be Native American human remains on the shore of Lake Francis Case (the "Lake") behind Fort Randall Dam. Through its complaint, the Tribe seeks a preliminary injunction preventing defendant, the United States Army Corps of Engineers (the "Corps") and its officers, agents and employees, and all those in active concert or participation with the Corps, from allowing the water level in the Lake to rise above its current level. The Tribe also seeks a permanent injunction affording the same relief or, in the alternative, a writ of mandamus directing the Corps to prevent the water level from rising and to notify the Tribe that the human remains have been discovered. On December 23, 1999, the Court entered a Temporary Restraining Order preventing the Corps and its officers, agents, servants, employees, attorneys and all other persons in active concert or participation with it, including named defendants Joe N. Ballard and Tom Curran, from raising the water level at the Lake higher than 1340.3 feet above sea level. A hearing on the Tribe's motion for a preliminary injunction was held on January 3-4, 2000.

FACTS

The cemetery at White Swan Church, also known as St. Phillip's Cemetery, predates Lake Francis Case. One witness testified that the cemetery was established in 1892. The Corps' Report on Plan of Cemetery Relocations (the "Relocation Plan"), filed with this Court in 1950, indicates that the marked graves in the cemetery dated back to 1869.1 Documents introduced by the Corps indicate that the Episcopal Chapel of St. Phillip the Deacon, located next to the grave site, was reserved for religious purposes in 1894. (Ex. B.) It seems likely that the Chapel was in existence before that date. The oral history of the Tribe holds that the grave site adjacent to the church has been used for the burial of tribal members since at least the early nineteen hundreds. According to affidavits supplied by members of the Tribe, nearly all of the dead buried in the cemetery were "Sioux Tribal" members. (Drapeau Aff. at 2; Spotted Eagle Aff. at 1.) In addition, according to the same affidavits, the Yankton Sioux have buried their dead in the area of the church, though not necessarily on the cemetery site, since before the graveyard was founded, since at least 1838, and possibly from prehistoric times.

In 1949, the United States filed a petition to condemn the property containing the cemetery in order to allow the construction of Fort Randall Dam and Lake Francis Case.2 In 1950, as part of the condemnation proceedings, the government obtained an order authorizing the United States, "at its own expense, to disinter, remove and reinter the bodies of all persons buried [in the cemetery]." Under this order, the removal was to be carried out pursuant to the Relocation Plan, which was filed in those same proceedings. Through the Relocation Plan, the Corps took responsibility for the disinterment, removal, and reinterment of the burials that would be inundated by the Lake, and made a self-described "intensive effort" to locate burial sites, determine the identity of the persons buried there, and learn of relatives' wishes regarding reinterment. (Relocation Plan, Ex. A.) The Relocation Plan provides the following history and assessment of the cemetery:

The first Episcopal Church was established on this tract in 1871 and the first burials in the cemetery date back to about 1869 according to the dates of death shown on the monuments and information obtained from old residents of the area. The official church records at Greenwood, S.D., show that the first Indian was buried in the cemetery in 1874. According to the church records, approximately 150 burials were made between 1874 and 1900 but no record is shown of any burials in 1875 and 1881 so no doubt many were not recorded and the location of some of these graves is unknown. There are 54 monuments marking the location of this number of Indian people buried before the turn of the century. Of the 428 graves found in the cemetery, 185 have monuments or white wooden crosses identifying the people buried; the remaining 234 have not as yet been marked with the names of the people buried but after the Land Field agent had consulted a considerable number of relatives, it was discovered that the majority of the graves could be identified and the Indian relatives agreed to mark the graves in a manner so that they could be identified. All of the unidentified graves are either mounded up or are marked by stakes at the head of each grave.

(Id.) Under the Relocation Plan, the Corps contracted for the removal of the bodies buried at the cemetery to a new St. Phillips Cemetery in Lake Andes, South Dakota. The Corps failed to effect the removal and reburial of all of the bodies in the cemetery.

Due to the construction of Fort Randall Dam and the Corps' management of the Lake, the land on which the cemetery sits is now covered by lake water for a part of every year. According to a map of the cemetery contained in the Relocation Plan, the cemetery rests on land which ranges in elevation from 1343 to 1347 feet above sea level. A map surveyed and drawn by Corps employees in December 1999 shows that most of the remains are located along a line 1340.6 feet above sea level. (An estimated loss of three to four feet in soil since the creation of the Lake may explain both the drop in elevation and the exposure of human remains at the site.) The Corps' Annual Operating Plan currently calls for the Lake's water level, pursuant to projected median runoff, to fluctuate between a peak of 1355.2 feet above sea level maintained from March 31 through August 31, and a valley of 1337.5 feet on November 30. The Corps' planned increase in the water level to 1343.5 feet by the end of December 1999, 1347.0 feet by the end of January 2000, and 1350.0 feet by the end of February 2000, would completely inundate the site.

The Corps' adjustment of the water levels is designed to serve the multiple purposes set forth in the Flood Control Act of 1944, including flood control, irrigation, power supply, navigation, and recreation. The winter and spring increase in the water level at the Lake allows the Corps to generate additional hydroelectric power. If the water level does not rise as planned, approximately 150 gigawatt hours of additional anticipated power are predicted to be lost in January and February 2000 alone. The Western Area Power Association ("WAPA"), part of the United States Department of Energy, usually purchases this power on a firm basis from the Corps. Stan Mason, a Systems Operations Manager at WAPA, testified that WAPA would lose an approximate total of $3.8 million in an average January and February if it had to purchase power from other sources on the open market. (So far, temperatures have been milder than average, which will reduce WAPA's estimated loss.) The winter increase also allows the Corps to reduce water levels at upstream reservoirs as part of the Corps' effort to prevent flooding by capturing runoff from spring rains and melting snow packs in the mountains and northern plains. The autumn decrease in water levels creates a "hole" in the Lake which, as it uncovers the grave site in late fall and early winter, also supplies the Corps with storage capacity to accept additional water from the upstream reservoirs as part of the Corps' flood-control plan. It is clear that requiring the Corps to maintain the water in Lake Francis Case at its current level for an extended period of time would interfere with its plans for power generation, flood control, and the other objectives of the Flood Control Act. It is not clear, however, to what extent the Corps could compensate for any resultant loss in its capacity for power generation or flood control by changing its plans and adjusting its operations at other dams in the Main Stem System.3

In 1966, after Fort Randall Dam had created Lake Francis Case, it was discovered that some of the burials at St. Phillips Cemetery had not been removed. A Corps memorandum, dated February 1, 1966, indicates that a deer hunter reported in December 19654 that graves containing bones had been uncovered at the cemetery. According to the memorandum, the alternate flooding and drying of the cemetery site had made the outline of each grave easily discernable. Someone had dug into thirty-five to forty of the graves, and scattered bones on the ground around nine of them. Assuming that all known graves had been removed under the contract, the Corps concluded that the graves still containing bones were unmarked and unknown to authorities at the time of the move. In response to the discovery, the Corps contacted area residents and the Chairman of the Yankton Sioux Tribal Council. The Corps first planned to remove and re-bury the bones from the nine graves during low water in the fall of 1966 but then decided instead to disinter and reinter the bones immediately. According to the memorandum, the bones from the nine graves were removed and reburied at the new St. Phillip's Cemetery in Lake Andes before the end of January 1966.

On October 18, 1990, a Corps park ranger investigated the site of old St. Phillip's Cemetery following a report by two local fishermen that ...

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