Archaeological Resources Protection Act of 1979 (16 USC 470aa-47011) require such protection. The alternatives outlined in the PRDEIS fail to elevate this issue as a priority, thereby violating treaties and federal law.

Finally, the COE's long term model for operation of the system purports to incorporate the "value" of our ancestors remains and cultural objects into a computer model for alternatives for system operations. This preposterous notion must be rejected. Instead, the COE must work in close coordination with the Tribes to identify the culturally significant areas, and establish models for reservoir regulations that will protect them.

This Committee should hold the Army Corps of Engineers accountable for its ongoing violations of NAGPRA and NHPA, in its Missouri River operations.

These cultural resources along the Missouri River are generally located on Corps of Engineers-held land, above the reservoirs of the Missouri River. These lands are scheduled to be transferred out of federal status, under Title VI of the Omnibus and Emergency Appropriations Act of 1998. I urge the Committee to ensure that NAGPRA protections remain in place for any land that loses its federal character, under this provision.

In sum, the Indian Tribes of the Missouri River basin have been substantially and detrimentally impacted by Corps of Engineers and Bureau of Reclamation water projects. The destruction of Native grave sites is perhaps the most onerous of the injuries we have suffered. Yet the operation of these projects, especially the Corps of Engineers' dams on the Missouri River, continues to unearth Native human remains and funerary objects. Although the Corps cooperates with repatriation, it takes no action to mitigate the damage to these resources in the on-going operation of these dams. The Corps Preliminary Revised Draft EIS for Missouri River operations, released in July, 1998, gives no indication that the Corps is prepared to change its "business as usual" attitude. Without doubt, urgent Congressional action is needed to remedy this.

Chief Seattle explained the importance of our ancestors' graves - "To us the ashes of our graves are sacred and their resting place is hollowed ground." Yet one noted commentator, Suzan Shown Harjo has opined that, notwithstanding NAGPRA, "Native holy places are being desecrated and threatened to a greater extent now than at any time in

the past."

The Mni Sose Water Rights Coalition looks forward to working with the Senate Committee on Indian Affairs to ensure that we reverse this desecration.

Statement of Charles W. Murphy, Chairman

Standing Rock Sioux Tribe

Before the U.S. Senate Committee on Indian Affairs

Hearing on the Native American Graves Protection and Repatriation Act

April 29, 1999

Introduction

Chairman Nighthorse Campbell and committee members, my name is Charles W. Murphy, and I serve as Chairman of the Standing Rock Sioux Tribe. Standing Rock is a signatory of the Treaty of Fort Laramie of April 29, 1868. Under the Fort Laramie Treaty, all of present-day South Dakota west of the Missouri River is recognized as the Great Sioux Reservation. Our present Reservation alon the Missouri River in central South Dakota and North Dakota is small tract within our vast treaty territory.

The Missouri's east bank is the eastern boundary of our treaty territory. Under the Native American Graves Protection and Repatriation Act, all native human remains and funery objects located within the Treaty boundaries are deemed to be owned by the sioux Nation, with a right of repatriation.

The protection of cultural resources is a priority of the Standing Rock Sioux Tribe. We have established the Standing Rock Tribal Historic Preservation Office, one of only a few Tribal cultural offices in the United States that is recognized by the Secretary of the Interior as possessing the legal status of a State Historic Preservation Office, under the National Historic Preservation Act.

The Standing Rock THPO is responsible for repatriating the human remains, funery objects and other cultural resources that have been inventoried at museums and that have been uncovered on the federal or Tribal lands within the Great Sioux Reservation boundaries. This has involved considerable coordination with museums and federal agencies, consultation with our religious leaders, the transfer of remains and ceremonies for their repatriation. We take these tasks very seriously.

Construction of Oahe Dam and Reservoir on

the Standing Rock Indian Reservation

In 1958, the Corps of Engineers built the Oahe Dam and Reservoir, on our Reservation. This dramatically altered the Reservation landscape. The Missouri River, in whose wooded bottomlands our Tribal communities were located, was transformed from a healthy free-flowing river to a large reservoir. The wooded riparian area, upon which we relied for wood, forage, and water, were

destroyed. In Public Law 85-915, the Congress authorized the taking by the Corps of engineers of 56,000 acres of the most valuable land on our Reservation, for the site of Oahe Reservoir.

Literally overnight, the economic resources upon which we survived were destroyed. A welfare economy arose, with food stamps, fuel assistance and welfare payments replacing hunting and fishing, wood burning and ranching on our Reservation. Most important, perhaps, the Corps of Engineers failed to relocate the cemeteries in our communities. They were unearthed by Oahe Reservoir, and now they wash up on its shores, on federal land along the Missouri River.

Author Michael Lawson explained the suffering we have experienced, as follows

The shaded bottom lands provided a pleasant living environment
with plenty of wood, game, water and natural food resources. The
trees along the Missouri and its tributaries were a primary source
of fuel and lumber for the tribes and (provided protection)...from
The ravages of winter and the scorching summer heat. The
gathering and preserving of wild fruits and vegetables was traditional
facet of Plains Indian cultures. The numerous types of herbs, roots,
berries and beans that grew in the bottom lands added bulk and
variety to the diet, and were used for medicinal and ceremonial
purposes.

The wooded bottom lands also served as shelter and feeding grounds
for many species of wildlife, and hunting and trapping were important
sources of food, income, and recreation for the tribes. The loss of
bottom land grazing areas crippled tribal livestock operations, once
the primary industry on many reservations. Artificial shelters has to
be built to replace the natural resources of the old habitat. Stock
raising thus became far more difficult, expensive, and risky.

The Pick-Sloan projects damaged every aspect of reservation life.
Abruptly the tribes lost the basis for their subsistence and had to
develop new ways of making a living in a cash economy. The
relocation of the agency disrupted federal and tribal services, and
tipped The social, economic, and religious fabric of the well-integrated
tribal life. It was especially onerous for the Indians to excavate their
ancestors' remains.

Michael M. Lawson, Dammed Indians - Pick-Sloan Plan and the Missouri River Sioux. University of Oklahoma Press (1982).

The construction of the Oahe Dam on our Reservation, and the other Missouri River dams, is a major NAGPRA issue for the Standing Rock Sioux Tribe and the Great Sioux Nation. There were Indian communities at Standing Rock and all along the Missouri River in what is now South

Dakota. The construction of the dams - and the failure of the Army to properly relocate the burial sites when they destroyed our communities, results in an abundance of Native American human remains, funerary objects and other cultural resources associated with the Standing Rock Sioux Tribe and Great Sioux Nation - embedded in the banks of the Army Corps of Engineers lands above the Missouri River reservoirs.

Under NAGPRA, all human remains, funerary objects and associated cultural resources unearthed on the approximately 280,000 acres of Corps of Engineers lands along the Missouri River in South Dakota, are owned by the Great Sioux Nation, with the right of repatriation to the Tribe from which it is determined to have originated. 25 U.S.C. §3002. Many of these objects have Arikara origins, in which case they are repatriated with the Three Affiliated Tribes of Fort Berthold.

Standing Rock and our fellow North Dakota Tribes have a Memorandum of Agreement with the Corps of Engineers for repatriation of remains and cultural resources found on Corps lands in North Dakota. The MOA contains procedures, protocols and timelines for repatriation. It has been utilized by the Corps of Engineers for guidance for repatriation in South Dakota, as well. The present-day Standing Rock Reservation is located in both North Dakota and South Dakota.

However, in 1998 the Congress gutted NAGPRA protections for Native human remains and cultural resources along the Missouri River in South Dakota. Title VI of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for 1999, was known as the S.D. Mitigation Act. This budget rider transfers up to 200,000 acres of Corps of Engineers project lands along the Missouri River to the state of South Dakota. It also transfers certain Corps lands to two Indian Tribes, and provides federal wildlife funding to the state and two Tribes.

This legislation seriously threatens NAGPRA rights of Standing Rock and the Great Sioux Nation. It was added to the FY 1999 budget in virtual secrecy, without a hearing and without adequate consideration of its impacts to Lakota burial sites along the Missouri.

The Congress seriously impacted very important rights of our Nation, under NAGPRA. I am asking this Committee to reconsider this issue as you develop needed amendments to NAGPRA.

Impacts of S.D. Mitigation Act on NAGPRA

The land to be transferred to South Dakota is presently administered by the Corps of Engineers. It contains over 700 listed native cultural sites, most of which are associated with the Great Sioux Nation.. When the federal government dammed the Misssouri, human remains, funerary objects and other cultural artifacts layered along the banks. These objects remain protected by NAGPRA, as long as the land remains in the hands of the federal government.

The Native American Graves Protection and Repatriation Act (NAGPRA) provides for a strong federal role in the protection of native cultural resources on federal lands. 25 U.S.C. §3001 et seq. Under NAGPRA, Native American human remains and funerary objects that are unearthed on federal lands, automatically are deemed to be owned by the Tribe with which they are associated.

There may be no intentional excavation, and inadvertent discoveries must be reported to the federal agency and Tribe. 25 U.S.C. §3002(c) & (d). No additional excavation or similar activity may resumed without full protection of the resources. The objects must be immediately transferred to the custody of the Tribe, which is empowered to perform repatriation. 25 U.S.C. §3002(c). The federal land manager is responsible for enforcing this.

Similarly, under the Archaeological Resources Protection Act of 1979, 16 U.S.C. §470aa et seq, no person may excavate or remove native archaeological resources on federal lands, without a permit from the applicable federal land manager. As with NAGPRA, the federal land manager is entrusted with protection of native cultural resources through the permitting process. This is generally designed to limit excavations by archaeologists.

The National Historic Preservation Act requires federal agencies to limit the impacts of their actions on historic properties. 16 U.S.C. §470a et seq. This statute applies to "federally assisted undertakings." 16 U.S.C. §470f.

All Corps of Engineers activities under the current Missouri River operations constitute federal undertakings under the act. Under 16 U.S.C. §470a(d), "The Secretary (of interior) shall establish a program...to assist Indian Tribes in preserving their particular historic properties.....(and to do so) in such a manner as to ensure tribal values are taken into account." Indeed, the Congress accepted these values as the principles underlying NAGPRA.

South Dakota state law provides for certain historical preservation. State law prescribes criteria for the State Historical Preservation Board in determining "Heritage areas." S.D.C.L. 1-19A26. These criteria include the existence of a "historic preservation plan," accessibility of the site for visitors, whether the site shall "contribute to the economic welfare of this state,” whether “it is identifiable to the visiting public,” etc. Id. Native values are not listed for consideration.

South Dakota law confers discretion to the state board for mitigation of cultural resources

The state historical society board of trustees, upon notification
or determination that scientific, historical, or archaeological data
including relics and specimens, is or may be adversely affected,
shall, after reasonable notice to the responsible department,
institution or agency conduct or cause to be conducted a survey
and other investigations to recover and preserve or otherwise
protect such data, including analysis and publication, which in its
opinion should be recovered in the public interest.

S.D.C.L. §1-20-23.

Under state law, mitigation is discretionary. Under any circumstances, the information is public. Moreover