Federal Agencies and NAGPRA

( – promoted by navajo)

After decades of struggles by Native American tribal governments and individual Indians, in 1990 Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). This act requires a number of institutions, such as museums, federal agencies, and universities, to inventory certain categories of human remains and associated funerary objects. Under NAGPRA, the inventory was to be completed by 1995.

Two decades after NAGPRA became law, the Government Accountability Office (GAO) has issued a report showing that many key federal agencies are not yet in compliance with the law. The GAO concludes:

Despite the fact that key federal agencies have now had almost 20 years to comply with the act, they still have not fully complied.

The GAO report looks at eight federal agencies: the Bureau of Indian Affairs, Bureau of Land Management (BLM) , National Park Service (NPS), U.S. Fish and Wildlife Service (FWS), U.S. Forest Service, U.S. Army Corps of Engineers, and the Tennessee Valley Authority (TVA), and the Bureau of Reclamation. These agencies have millions of American Indian artifacts and human remains in their possession. The GAO report:

http://www.gao.gov/new.items/d…

According to agency data and our survey results, a total of 55 percent of human remains and 68 percent of associated funerary objects have been repatriated as of September 30, 2009.

Human remains held by the eight agencies included 5,246 held by the Forest Service, 4,053 by NPS, 1,565 by BLM, 550 by the Bureau of Reclamation, and 464 by the BIA.  According to the report:

Of the eight key agencies we reviewed, the Forest Service and FWS had the lowest repatriation rates for human remains among the key agencies with published notices of inventory completion.

The Forest Service had repatriated only 15% of its human remains and the FWS had repatriated less than 50%. On the other hand, the Bureau of Reclamation had repatriated all of theirs and the BIA had repatriated 95%.

Lack of repatriation in some cases is due to multiple competing repatriation requests and the federal agency has been unable to clearly determine which requesting party is most appropriate. The report provides this example:

For example, in a case involving human remains that represent approximately 1,400 individuals removed from the Tonto National Forest in Arizona, there is a disagreement among some of the culturally affiliated tribes over the place and manner of the final disposition of the human remains. According to the Forest Service, because this involves differing cultural views among culturally affiliated tribes, it is leaving the matter to the tribes to resolve. As a result, the repatriation cannot proceed until the disagreement is resolved.

There are also differences in the reburial policies among the agencies. For example, the Bureau of Reclamation does not allow reburial on the land which it manages and thus the tribes must find appropriate reburial sites.

Repatriation involves not only human remains, but also unassociated funerary objects, sacred objects, and objects of cultural patrimony. By the end of fiscal year 2009, federal agencies had published 78 notices of intent to repatriate in the Federal Register covering 34,234 objects.   Of these the BIA has 24,200 and NPS has 3,352.

While NAGPRA has provided the Indian Nations with some power over their ancestors and important cultural artifacts, this power is diluted by the inability of the federal agencies to comply with it. According to the GAO, this lack of compliance is not due to racism or anti-Indian sentiment, but due to a lack of funding and a lack of knowledgeable staff to implement it.  

Dam Indians: The Columbia River

During the twentieth century, the United States viewed large hydroelectric dams as signs of progress, and as symbols of American technological superiority and modernity. In 1932, the Army Corps of Engineers submitted a 2,000 page report which called for the construction of 10 large dams on the Columbia River in Oregon and Washington. The report described the benefits of these dams, including improved navigation routes, electric power, irrigation water, and flood control. Boosters of the project promised that the electricity generated by the dams would change the culture of the area and bring in new, innovative industries. There was no concern for any possible impact on the Indian nations which have lived along the river for thousands of years, nor was there any consideration given to the spiritual meaning and use of the river.  

In 1934, Frank B. Lenzie, the Bureau of Indian Affairs range supervisor in Spokane, wrote to the Commissioner of Indian Affairs expressing concern over the construction of dams on the Columbia River. His concern was that the dams would cut off the salmon run and thus impact the Indians’ income. The government, however, has little concern for Indian use of the river. President Franklin Roosevelt, when he pushed the button which started the first power unit at the Bonneville Dam, outlined a plan for ever-expanding development and more dams on the river.

In the 1950s, promotion of dam-building on the Columbia River took on a new dimension: national defense. If the United States, the Army Corps of Engineers argued, was going to defeat godless communism, then it was going to need the electrical power generated from the Columbia River dams. This provided a new sense of urgency for the construction of the dams and a new excuse for ignoring the impact of the dams on Indian cultures. At this same time, the government is fighting communism in the United States by attempting to terminate Indian nations whose communally-held lands were seen as un-American.

While the courts had long recognized that Indians have superior fishing rights along the Columbia River which they reserved under their treaties with the United States, the authorization of dams by Congress effectively took this resource from the Indians. Economic benefits for non-Indian communities-hydroelectric power, irrigation water, improved transportation-were more important than Indian resources (fish) and spirituality.

In assessing the costs of the dams, the Corps of Engineers ignored any cultural costs, particularly any spiritual or religious values of the Indian nations.

The government destroyed traditional Indian fishing sites along the river when it constructed the dams. The government made solemn promises to provide the Indians with in-lieu fishing sites to replace these sites. However, the in-lieu sites were not a high priority for the federal government. The government had to deal with more pressing issues, such as providing recreational areas for non-Indians along the river. While the government seemed able to find land for recreational sites, and to find the money to purchase this land and improve it, it was unable to find either land or money for the in-lieu fishing sites.

The Army Corps of Engineers managed to build 27 parks along the river, all of which were developed after the Corps promised six sites to Indian fishers. While the Corps was unable, or unwilling to find land for the Indian in-lieu fishing sites, their parks total 952 acres, more than double the land it couldn’t find for the Indians.

The government constructed seventeen dams between the salmon and their Columbia and Snake River spawning grounds. The government irrigation projects took water from the River to water non-Indian farms and then returned some of the water laden with fish-killing fertilizer and pesticides.

In 1986, Congress passed the Columbia River Gorge National Scenic Area Act. The Act itself does not recognize the Indian fishing sites along the river, but the congressional report which accompanied the Act states:

“It is the intent of Congress that previous agreements with Tribes be fulfilled and this legislation not prejudice the ability of Congress to accomplish what was promised 47 years ago. Recreation plans must recognize the need for additional sites and provide for them in the planning process, following the recommendations by the appropriate tribes.”

In 1988, the Senate Select Committee on Indian Affairs held a hearing on the situation of the in-lieu fishing sites and fishing regulations on the Columbia River. The committee brought in representatives from the Army Corps of Engineers, the Bureau of Indian Affairs, the Department of the Interior, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service. Indians from the Yakama, Warm Springs, Umatilla, and Nez Perce tribes also provided testimony.

Yakama tribal spokesman Levi George pointed out that the Columbia River was now a series of lakes and that:

“Under these lakes lies the heritage of the Yakama people. Gone are our traditional villages, camp sites, drying sheds, rapids and falls and usual and accustomed fishing places, covered by these lakes in the name of progress. Also gone are many promises made to us by the white man during the building of the dams, including promises that fish ladders at the dams would fully protect our salmon, that our fishers would not be lost through progress and that our fishing places, at least in part, would be replaced.”

In response the representative from the Corps of Engineers states:

“From a purely technical/legal perspective, we believe the Corps has met its legal obligations to provide in-lieu sites.”

The Indian Nations along the Columbia River continue to fish in the river and the river continues to be an important part of Native spirituality. Recognizing the interdependence between human people and salmon people, the tribes are using scientific methods in an attempt to maintain the salmon runs.  

Dam Indians: The Missouri River

The Missouri River has an important place in American history. In 1803 the United States purchased the rights to govern the Louisiana Territory, an area which spread from the Mississippi River west to the headwaters of the Missouri River. The Lewis and Clark expedition was then sent out to find the headwaters of the Missouri, to make contact with the Indians, and to report on the economic potential for the new territory. Soon after, the Missouri became the highway for non-Indian fur traders, explorers, miners, and settlers.  

In 1944 Congress approved the Pick-Sloan Plan for flood control and navigation on the Missouri River. The primary beneficiaries of the Pick-Sloan plan were non-Indian farmers. The Plan involved the construction of four dams – Garrison, Fort Randall, Oahe, and Big Bend – which would impact twenty-three Indian reservations and result in the forced relocation of nearly 1,000 Indian families. Many Indian leaders would later charge that the project selected Indian lands for dam sites rather than non-Indian lands. In carrying out the plan, the Army Corps of Engineers negotiated settlements with the Indians, ignoring tribal sovereignty, Indian law, and treaty rights.

The Bureau of Indian Affairs was fully informed about the project and its impact on Indian reservations. The BIA made no objections to the project while it was debated in Congress. None of the tribes affected by the project were consulted about it.

Former Commissioner of Indian Affairs Philleo Nash would later say that Pick-Sloan “caused more damage to Indian land than any other public works project in America.” The plan ignored Indian water rights and the Winters Doctrine.

In 1946 the Army Corps of Engineers began construction on the Fort Randall Dam in South Dakota. The dam flooded 22,091 acres of Yankton Sioux land and dislocated 136 families. The reservoir also covered Fort Thompson, the largest community on the Crow Creek Reservation. As a result, the Bureau of Indian Affairs Offices were moved to Pierre, South Dakota and the Indian Health Service facilities were moved to Chamberlain, South Dakota. By placing these two services – BIA and HIS – in two different communities it became more difficult and less convenient for the Indians needing these services.

The Army Corps of Engineers, ignoring the Yankton Treaty of 1858, tribal sovereignty, and Indian law, simply condemned the Indian land that it needed. The amount offered to Indian land owners was often significantly less than the amount offered to non-Indian land owners.

The Army Corps of Engineers also entered the Fort Berthold Reservation in North Dakota to begin construction of the Garrison Dam. The Three Affiliated Tribes of the Reservation — Mandan, Hidatsa, Arikara — had not been informed of the project. The dam would flood every acre of productive land on the Fort Berthold reservation.

When the tribes informed the Department of Interior that the homes and lands of 349 families with 1,544 people were to be flooded, the BIA simply told them to start looking for new homes.

While the Army Corps of Engineers altered the project’s specifications without Congressional authorization to protect the non-Indian town of Williston, they did nothing to protect the Indian communities. The Fort Berthold tribes protested to Congress and managed to stop the funding for the project until a settlement was reached.

At one reservation conference attended by General Pick of the Army Corps of Engineers, Indians in full ceremonial dress denounced the talks. General Pick flew into a rage, canceled the negotiations, and repudiated all of the agreements which had been reached as of that time. By his failure to understand the situation, the general clearly revealed his basic ignorance of the people with whom he was dealing. General Pick’s contention that the Indians were belligerently uncooperative was used by him as a reason to dictate his own settlement terms to Congress.

In 1948 the Army Corps of Engineers began construction of Oahe Dam in South Dakota. The Oahe Dam would destroy more Indian land than any other public works project in America.  The project destroyed 90 percent of the timber land on the Standing Rock Sioux and Cheyenne River Sioux reservations as well as the most valuable rangeland, most of the gardens and cultivated areas, and the wild fruit and wildlife resources.

The Department of the Interior (of which the BIA is a part) signed the final agreement in 1948 for the Pick-Sloan plan to build dams which would flood the Fort Berthold Reservation in North Dakota. While the Pick-Sloan plan took great care not to drown any non-Indian towns along the Missouri River, it flooded 155,000 acres of the most fertile Indian farmland in the Great Plains.

The agreement denied Indians the right to use the reservoir shoreline for hunting, fishing, grazing, or other purposes. It also rejected tribal requests for irrigation development.

In 1950 Congress enacted legislation which established the guidelines for the negotiation of a settlement for Indian lands taken by the Oahe Dam project in South Dakota. The legislation made the Army Corps of Engineers and the Secretary of the Interior responsible for negotiating favorable settlements with the tribes. The legislation required that the settlement include payment for Indian land and improvements as well as for relocation costs.

The Standing Rock Sioux in 1951 attempted to hire their own attorney, to be paid out of tribal funds, to help in the negotiations regarding lands taken in the Pick-Sloan dam projects. The tribe wanted legal counsel which would be totally independent from the politics of the Department of the Interior. However, Commissioner of Indian Affairs Dillon Meyer rejected their choice of an attorney and allowed only a one-year contract.

The attorney selected by the tribe, James Curry, was an outspoken critic of the BIA and was one of a number of Indian claims lawyers against whom Meyer had a personal vendetta. The tribe protested Meyer’s decision to the Department of Interior. The Department of the Interior did nothing as Meyer continued to publicly attack Curry.

Federal representatives from the Army Corps of Engineers and the BIA met with the Standing Rock Sioux and the Cheyenne River Sioux in 1952 to seek an agreement over lands taken from them under the Pick-Sloan dam projects on the Missouri River.

The Standing Rock Sioux asked that they be allowed to spend $500 to have their attorney attend the conference with them. Commissioner of Indian Affairs Dillon Meyer refused the request, calling it a “highjacking game.” The Secretary of the Interior overruled Meyer’s decision.

According to one representative from the Cheyenne River Sioux: “This is not a happy occasion. We are here to participate in the gutting of our reservation.”

Representatives of the Cheyenne River Sioux in South Dakota testified before Congress in 1954 regarding land claims from the Oahe Dam of the Pick-Sloan Project. The representatives paid their own way for the BIA would allow them only five days in Washington which was not enough time to cut through the federal bureaucracy. The representatives also realized that Congress was more comfortable hearing from Indian stereotypes than real Indians. Thus, Little Cloud was instructed to speak in Lakota at the hearings, and Chasing Hawk was to translate his remarks into broken English, even though both men spoke their adopted language fluently. Members of Congress were delighted.

In the end, Congress awarded the Cheyenne River Sioux nearly $11 million which was $13 million less what the Indians felt was just compensation for their losses.

In 1958 the Army Corps of Engineers filed suit to condemn Standing Rock Sioux land which was needed for the Oahe Dam. Tribal attorneys countered with a motion to dismiss because Congress had not given specific authorization to condemn tribal land. Support for the Indian’s case was provided in the 1868 Sioux Treaty which stated that land can be taken only upon payment of just compensation and the consent of adult tribal membership.

Judge George Mickelson, a former South Dakota governor, found for the tribe stating: “It is clear to this Court that Congress has never provided the requisite authority to the Secretary of the Army to condemn this tribal land. Such action is wholly repugnant to the entire history of Congressional and judicial treatment of Indians.”

Two weeks after the Oahe Dam was closed and the reservoir began filling, Congress passed a settlement which provided a little more than $12 million to the Standing Rock Sioux. This was $14 million less than they had requested.

In 1959 the Army Corps of Engineers began work on the Big Bend Dam in South Dakota. The project was located on lands belonging to the Crow Creek Sioux and the Lower Brule Sioux and would take 21,026 acres of Sioux land. The reservoir would flood the town of Lower Brule.

In addition, the reservoir created by the dam would flood the reservation lands which had the greatest potential for irrigation and thus destroy the possibility of implementing plans proposed by the BIA and the Bureau of Reclamation for irrigation projects on the two reservations.

The Army Corps of Engineers filed a condemnation suit against the Crow Creek Sioux and the Lower Brulé Sioux in 1960 to obtain land for their Big Bend Project. Congress had not specially designated any power of eminent domain to the Army and the Army ignored the Court ruling regarding the Standing Rock Sioux. The Army Corps of Engineers was allowed to take title to the land. Neither the tribes themselves, their lawyers, the BIA, nor any of the Indian rights organizations protested this decision.

In South Dakota, the Army Corps of Engineers delivered payment to the Standing Rock Sioux for lands needed for the Oahe Dam project in 1960. In the midst of a fierce winter, the tribe was also given an immediate eviction notice. Indian families were forced to gather their possessions and leave the land. However, the government had not yet made available funds for the construction of new homes and the people were forced to live in trailers which they had to maintain at their own expense. The eviction date established by the Corps had been an arbitrary one. Tribal members could have remained in their old homes until the more favorable months of summer without interfering with the completion of the Oahe project.

Under 1944 legislation dealing with the electricity generated by the Pick-Sloan dams, Indians should have qualified as preferential low-cost power customers. However, the government simply ignored this and the Indians did not receive low cost electricity from the dams located on their land. It took Congress nearly 40 years to recognize that a wrong had been committed. Therefore, in 1982 authorized the Departments of Energy and Interior to make Pick-Sloan pumping power available to the Standing Rock, Cheyenne River, Crow Creek, Lower Brule, and Omaha Reservations in South Dakota and Nebraska. However, Congress did not provide for the construction of new transmission lines to these Indian projects. Existing lines owned and operated by Rural Electrification Administration cooperatives were unable to give the tribes a reduced delivery rate.

In 1983 the state of South Dakota attempted to exercise exclusive jurisdiction over hunting and fishing in the Fort Randall and Big Bend Dam project areas on the Lower Brulé Reservation. The Court of Appeals ruled in favor of the Indians and as a result both the state and the tribe enforced their regulations within the area. The state, however, was limited to enforcement over non-Indians.

In 1988 the Cheyenne River Sioux Tribe announced that they would no longer recognize South Dakota hunting licenses in the Oahe Dam project area and that hunters must obtain a tribal hunting license.

Congress authorized in 1992 nearly $91 million to the Standing Rock Sioux in compensation for damages caused by the Oahe Dam project. The legislation also established an irrigation area on the reservation and transferred the administrative jurisdiction of the land taken in the project from the Secretary of the Army (Corps of Engineers) to the Secretary of the Interior (Bureau of Indian Affairs).

In 1999 Lakota protesters established a camp on LaFramboise Island in the Missouri River in South Dakota. The camp was in protest of the Water Resources and Development Act (WRDA) which would give treaty lands to the state of South Dakota. The lands were taken from the Cheyenne River and Lower Brulé Sioux tribes by the Army Corps of Engineers in 1947 as a part of the Pick-Sloan dam project. The land was no longer needed by the Corps.

In 2000 the Army Corps of Engineers agreed to delay raising water levels in Lake Francis Case in South Dakota to allow the Yankton Sioux Tribe to recover scattered human remains. The Indian burial site was uncovered when the water levels behind Fort Randall Dam dropped. Supposedly the Army Corps of Engineers had relocated all burials in 1950 before the reservoir filled.  

Dam Indians: The Missouri River

The Missouri River has an important place in American history. In 1803 the United States purchased the rights to govern the Louisiana Territory, an area which spread from the Mississippi River west to the headwaters of the Missouri River. The Lewis and Clark expedition was then sent out to find the headwaters of the Missouri, to make contact with the Indians, and to report on the economic potential for the new territory. Soon after, the Missouri became the highway for non-Indian fur traders, explorers, miners, and settlers.  

In 1944 Congress approved the Pick-Sloan Plan for flood control and navigation on the Missouri River. The primary beneficiaries of the Pick-Sloan plan were non-Indian farmers. The Plan involved the construction of four dams – Garrison, Fort Randall, Oahe, and Big Bend – which would impact twenty-three Indian reservations and result in the forced relocation of nearly 1,000 Indian families. Many Indian leaders would later charge that the project selected Indian lands for dam sites rather than non-Indian lands. In carrying out the plan, the Army Corps of Engineers negotiated settlements with the Indians, ignoring tribal sovereignty, Indian law, and treaty rights.

The Bureau of Indian Affairs was fully informed about the project and its impact on Indian reservations. The BIA made no objections to the project while it was debated in Congress. None of the tribes affected by the project were consulted about it.

Former Commissioner of Indian Affairs Philleo Nash would later say that Pick-Sloan “caused more damage to Indian land than any other public works project in America.” The plan ignored Indian water rights and the Winters Doctrine.

In 1946 the Army Corps of Engineers began construction on the Fort Randall Dam in South Dakota. The dam flooded 22,091 acres of Yankton Sioux land and dislocated 136 families. The reservoir also covered Fort Thompson, the largest community on the Crow Creek Reservation. As a result, the Bureau of Indian Affairs Offices were moved to Pierre, South Dakota and the Indian Health Service facilities were moved to Chamberlain, South Dakota. By placing these two services – BIA and HIS – in two different communities it became more difficult and less convenient for the Indians needing these services.

The Army Corps of Engineers, ignoring the Yankton Treaty of 1858, tribal sovereignty, and Indian law, simply condemned the Indian land that it needed. The amount offered to Indian land owners was often significantly less than the amount offered to non-Indian land owners.

The Army Corps of Engineers also entered the Fort Berthold Reservation in North Dakota to begin construction of the Garrison Dam. The Three Affiliated Tribes of the Reservation — Mandan, Hidatsa, Arikara — had not been informed of the project. The dam would flood every acre of productive land on the Fort Berthold reservation.

When the tribes informed the Department of Interior that the homes and lands of 349 families with 1,544 people were to be flooded, the BIA simply told them to start looking for new homes.

While the Army Corps of Engineers altered the project’s specifications without Congressional authorization to protect the non-Indian town of Williston, they did nothing to protect the Indian communities. The Fort Berthold tribes protested to Congress and managed to stop the funding for the project until a settlement was reached.

At one reservation conference attended by General Pick of the Army Corps of Engineers, Indians in full ceremonial dress denounced the talks. General Pick flew into a rage, canceled the negotiations, and repudiated all of the agreements which had been reached as of that time. By his failure to understand the situation, the general clearly revealed his basic ignorance of the people with whom he was dealing. General Pick’s contention that the Indians were belligerently uncooperative was used by him as a reason to dictate his own settlement terms to Congress.

In 1948 the Army Corps of Engineers began construction of Oahe Dam in South Dakota. The Oahe Dam would destroy more Indian land than any other public works project in America.  The project destroyed 90 percent of the timber land on the Standing Rock Sioux and Cheyenne River Sioux reservations as well as the most valuable rangeland, most of the gardens and cultivated areas, and the wild fruit and wildlife resources.

The Department of the Interior (of which the BIA is a part) signed the final agreement in 1948 for the Pick-Sloan plan to build dams which would flood the Fort Berthold Reservation in North Dakota. While the Pick-Sloan plan took great care not to drown any non-Indian towns along the Missouri River, it flooded 155,000 acres of the most fertile Indian farmland in the Great Plains.

The agreement denied Indians the right to use the reservoir shoreline for hunting, fishing, grazing, or other purposes. It also rejected tribal requests for irrigation development.

In 1950 Congress enacted legislation which established the guidelines for the negotiation of a settlement for Indian lands taken by the Oahe Dam project in South Dakota. The legislation made the Army Corps of Engineers and the Secretary of the Interior responsible for negotiating favorable settlements with the tribes. The legislation required that the settlement include payment for Indian land and improvements as well as for relocation costs.

The Standing Rock Sioux in 1951 attempted to hire their own attorney, to be paid out of tribal funds, to help in the negotiations regarding lands taken in the Pick-Sloan dam projects. The tribe wanted legal counsel which would be totally independent from the politics of the Department of the Interior. However, Commissioner of Indian Affairs Dillon Meyer rejected their choice of an attorney and allowed only a one-year contract.

The attorney selected by the tribe, James Curry, was an outspoken critic of the BIA and was one of a number of Indian claims lawyers against whom Meyer had a personal vendetta. The tribe protested Meyer’s decision to the Department of Interior. The Department of the Interior did nothing as Meyer continued to publicly attack Curry.

Federal representatives from the Army Corps of Engineers and the BIA met with the Standing Rock Sioux and the Cheyenne River Sioux in 1952 to seek an agreement over lands taken from them under the Pick-Sloan dam projects on the Missouri River.

The Standing Rock Sioux asked that they be allowed to spend $500 to have their attorney attend the conference with them. Commissioner of Indian Affairs Dillon Meyer refused the request, calling it a “highjacking game.” The Secretary of the Interior overruled Meyer’s decision.

According to one representative from the Cheyenne River Sioux: “This is not a happy occasion. We are here to participate in the gutting of our reservation.”

Representatives of the Cheyenne River Sioux in South Dakota testified before Congress in 1954 regarding land claims from the Oahe Dam of the Pick-Sloan Project. The representatives paid their own way for the BIA would allow them only five days in Washington which was not enough time to cut through the federal bureaucracy. The representatives also realized that Congress was more comfortable hearing from Indian stereotypes than real Indians. Thus, Little Cloud was instructed to speak in Lakota at the hearings, and Chasing Hawk was to translate his remarks into broken English, even though both men spoke their adopted language fluently. Members of Congress were delighted.

In the end, Congress awarded the Cheyenne River Sioux nearly $11 million which was $13 million less what the Indians felt was just compensation for their losses.

In 1958 the Army Corps of Engineers filed suit to condemn Standing Rock Sioux land which was needed for the Oahe Dam. Tribal attorneys countered with a motion to dismiss because Congress had not given specific authorization to condemn tribal land. Support for the Indian’s case was provided in the 1868 Sioux Treaty which stated that land can be taken only upon payment of just compensation and the consent of adult tribal membership.

Judge George Mickelson, a former South Dakota governor, found for the tribe stating: “It is clear to this Court that Congress has never provided the requisite authority to the Secretary of the Army to condemn this tribal land. Such action is wholly repugnant to the entire history of Congressional and judicial treatment of Indians.”

Two weeks after the Oahe Dam was closed and the reservoir began filling, Congress passed a settlement which provided a little more than $12 million to the Standing Rock Sioux. This was $14 million less than they had requested.

In 1959 the Army Corps of Engineers began work on the Big Bend Dam in South Dakota. The project was located on lands belonging to the Crow Creek Sioux and the Lower Brule Sioux and would take 21,026 acres of Sioux land. The reservoir would flood the town of Lower Brule.

In addition, the reservoir created by the dam would flood the reservation lands which had the greatest potential for irrigation and thus destroy the possibility of implementing plans proposed by the BIA and the Bureau of Reclamation for irrigation projects on the two reservations.

The Army Corps of Engineers filed a condemnation suit against the Crow Creek Sioux and the Lower Brulé Sioux in 1960 to obtain land for their Big Bend Project. Congress had not specially designated any power of eminent domain to the Army and the Army ignored the Court ruling regarding the Standing Rock Sioux. The Army Corps of Engineers was allowed to take title to the land. Neither the tribes themselves, their lawyers, the BIA, nor any of the Indian rights organizations protested this decision.

In South Dakota, the Army Corps of Engineers delivered payment to the Standing Rock Sioux for lands needed for the Oahe Dam project in 1960. In the midst of a fierce winter, the tribe was also given an immediate eviction notice. Indian families were forced to gather their possessions and leave the land. However, the government had not yet made available funds for the construction of new homes and the people were forced to live in trailers which they had to maintain at their own expense. The eviction date established by the Corps had been an arbitrary one. Tribal members could have remained in their old homes until the more favorable months of summer without interfering with the completion of the Oahe project.

Under 1944 legislation dealing with the electricity generated by the Pick-Sloan dams, Indians should have qualified as preferential low-cost power customers. However, the government simply ignored this and the Indians did not receive low cost electricity from the dams located on their land. It took Congress nearly 40 years to recognize that a wrong had been committed. Therefore, in 1982 authorized the Departments of Energy and Interior to make Pick-Sloan pumping power available to the Standing Rock, Cheyenne River, Crow Creek, Lower Brule, and Omaha Reservations in South Dakota and Nebraska. However, Congress did not provide for the construction of new transmission lines to these Indian projects. Existing lines owned and operated by Rural Electrification Administration cooperatives were unable to give the tribes a reduced delivery rate.

In 1983 the state of South Dakota attempted to exercise exclusive jurisdiction over hunting and fishing in the Fort Randall and Big Bend Dam project areas on the Lower Brulé Reservation. The Court of Appeals ruled in favor of the Indians and as a result both the state and the tribe enforced their regulations within the area. The state, however, was limited to enforcement over non-Indians.

In 1988 the Cheyenne River Sioux Tribe announced that they would no longer recognize South Dakota hunting licenses in the Oahe Dam project area and that hunters must obtain a tribal hunting license.

Congress authorized in 1992 nearly $91 million to the Standing Rock Sioux in compensation for damages caused by the Oahe Dam project. The legislation also established an irrigation area on the reservation and transferred the administrative jurisdiction of the land taken in the project from the Secretary of the Army (Corps of Engineers) to the Secretary of the Interior (Bureau of Indian Affairs).

In 1999 Lakota protesters established a camp on LaFramboise Island in the Missouri River in South Dakota. The camp was in protest of the Water Resources and Development Act (WRDA) which would give treaty lands to the state of South Dakota. The lands were taken from the Cheyenne River and Lower Brulé Sioux tribes by the Army Corps of Engineers in 1947 as a part of the Pick-Sloan dam project. The land was no longer needed by the Corps.

In 2000 the Army Corps of Engineers agreed to delay raising water levels in Lake Francis Case in South Dakota to allow the Yankton Sioux Tribe to recover scattered human remains. The Indian burial site was uncovered when the water levels behind Fort Randall Dam dropped. Supposedly the Army Corps of Engineers had relocated all burials in 1950 before the reservoir filled.  

Dam Indians: The Allegheny River

In 1928 the Army Corps of Engineers began to survey the Seneca’s Allegheny Reservation for the building of a large reservoir to reduce flooding on the Allegheny River and to provide recreation for the people of Pennsylvania and New York. This was done without the knowledge or approval of the Seneca.  

In 1953 the Department of the Interior changed its position on the proposed dam: while it had formerly opposed it, it now supported the concept. The newly elected Eisenhower administration supported dam projects, particularly those proposed by the Army Corps of Engineers.

In 1956 Congress authorized the construction of the Kinzua Dam project on the Allegheny River in Pennsylvania. The reservoir from the dam would flood one-third of the Seneca Reservation, leaving untouched only the wooded hillsides and the towns occupied by non-Indians under leases executed by Congress during the nineteenth century. In authorizing the Kinzua Dam, Congress did not consult with the Seneca.

The Seneca sought an injunction against construction of the dam, citing the 1794 Canandaigua Treaty. The courts, however, ruled that under the domestic law of eminent domain, the actions of the United States were legal and that the federal government had the power to make treaties and to break them. The Supreme Court refused to review this decision, thus halting all legal means to stop construction of the dam.

In addition to the treaty, the Seneca also had George Washington’s word that they would always have control of their lands on their reservation in New York and Pennsylvania. In 1790, three Seneca leaders – Cornplanter, Big Tree, and Halftown – had journeyed to Philadelphia to complain to President Washington about non-Indian encroachment on their lands. In a letter written in December of 1790 George Washington guaranteed their boundaries and control of their land. George Washington’s word meant more to the Seneca than it did to the United States government.

The Seneca also hired engineers to report on the feasibility of alternative sites. Arthur E. Morgan, the former head of the Tennessee Valley Authority and a longtime foe of the Army Corps of Engineers, and Barton Jones developed several alternatives to the Kinzua Dam that would have spared Seneca land. The Morgan alternatives would have stored more water and generated more electricity. All of these alternatives were rejected by the Corps of Engineers. The reason for rejecting these alternatives was that they would flood out non-Indians.

Congress passed the appropriation bill for the Kinzua Dam ($4.5 million) in 1960 and a few months later a groundbreaking ceremony was held for the dam. The Army Corps of Engineers completed the dam in 1964. As a result of the project 550 Seneca people had to be relocated. In addition to living people, the dam also required the relocation of more than 3,000 Seneca graves.

The dam displaced roads and railroad tracks, items which received prompt attention from both Congress and government bureaucracies. Congress did not turn its attention to the “human welfare” – that fact that people were also displaced by the dam – until 1963. It is interesting to note that the Pennsylvania Railroad received its final payment of $20 million for relocating its railroad tracks six months before Congress began to concern itself with the cost of the “human” relocation of the Seneca.