Tribal Historic Preservation Officers Michael Catches Enemy (left) and Wilmer Mesteth (right) testified to the NRC in Rapid City about the spiritual significance and legal rights to the Black Hills of the Oceti Sakowin during hearings about proposed uranium mining. Photo by/Talli Nauman
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RAPID CITY – In the wake of federal hearings about reopening uranium mines and milling in Black Hills treaty territory, members of the Washington, D.C.-based Atomic Safety and Licensing Board (ASLB) must decide if Native American sacred sites would be adequately preserved under the hotly contested license for the proposal. The proponent, Powertech Uranium Corp., which is changing its name to Azarga Uranium Corp. and the Nuclear Regulatory Commission (NRC) staff, argued at August hearings that a Programmatic Agreement for phased-in surveys of cultural resources is sufficient to justify granting the license to operate in the 10,500-acre Dewey-Burdock mining area of southwestern South Dakota.
“The complete evaluation of the historic and cultural resources adequately satisfies NRC requirements,” Powertech Azarga Counsel Christopher Pugsley said, in arguing for dismissal of contentions. However, none of the tribal governments with an interest in the area signed the agreement, or PA, and according to opponents, the license should be withdrawn because it illegally denies tribes and the general public oversight. Contesting the license are the Oglala Sioux Tribe, the non-profit Owe Aku (“Bring Back the Way”), the ad hoc groups Clean Water Alliance and Aligning for Responsible Mining, Black Hills Wild Horse Sanctuary owner Dayton Hyde, cattle rancher Susan Henderson, and others.
“This is basically one side saying we agree to do the right thing and the other side saying you haven’t even started to,” argued Clean Water Alliance Counsel Bruce Ellison. “The fact that the tribes affected didn’t sign the PA should say something.” The three-member ASLB panel of judges heard the arguments from legal counsel and expert witnesses regarding compliance with state law, the National Historic Preservation Act (NHPA) and the National Environmental Protection Act (NEPA) during the first of three consecutive formal hearing days scheduled Aug. 19-21 in Rapid City to consider withdrawal of the license issued earlier this year.
Anthropologist Adrien Hannus, director of the Augustana College Archeology Laboratory in Sioux Falls, who conducted Powertech Azarga’s initial historic and cultural preservation studies, testified that the discipline of archeology does not provide a framework for connecting specific tribes to historical sites.“We’re not qualified to conduct Tribal Cultural Preservation Studies,” Hannus said. “The data sets we work with can answer numerous questions,” he said. However, he added, “Connecting archeology to specific tribal entities is not part of our framework.”
Lynne Sebastian, an archeologist at SRI Foundation, who Powertech Azarga contracted after officials of 17 tribes told NRC the Augustana survey was insufficient, agreed with Hannus. Identification of “historic properties of religious and cultural significance” … “depends on the knowledge of traditional cultural practitioners, not on the exercise of some scientific discipline or method,” she testified. A federal Advisory Council for Historic Preservation signed the Programmatic Agreement allowing the mining project to go forward within the guidelines of the National Historic Preservation Act (NHPA).
The PA states that identification and protection measures on cultural sites would proceed in phases, alongside mining development, rather than being fully conducted prior to project initiation. Jeffrey Parsons, counsel for the Oglala Sioux Tribe, argued that the process does not satisfy the regulations under the National Environmental Protection Act (NEPA), which require public access to information and consultation, as well as full consideration of cultural properties in the Environmental Impact Statement that serves as the basis for licensing. “NHPA allows for a phased approach but NEPA does not,” Parsons said. “You cannot just push that out.” He noted that no tribal survey information was included in the final impact statement “despite tribes’ attempt to engage” because Powertech Azarga rejected tribal proposals on the basis of cost.
After tribes rejected the Augustana study, Powertech offered $10,000 to each tribe to conduct its own survey, according to Sebastian. The company covered the expenses for field work of each Tribal Historic Preservation Officer and up to two other representatives of each tribe to be involved in the process, according to Haimanot Yilma, project manager for the NRC staff’s environmental review of the Dewey-Burdock application. Yilma testified that the tribes presented an alternative proposal for cultural resource surveying that would last six months and cost $1 million, compared to the staff and Powertech proposal of a one-month time-frame and a $120,000 outlay.
When ASLB Chair William Froelich asked for testimony on the number of representatives “reasonable” for a tribe to have on such a survey, Louis Redmont, an expert witness for Aligning for Responsible Mining, said it would depend on the number of extended families (tiospayes) concerned in each tribe. “Some families don’t care anymore; some care deeply. The five families I deal with are on the eastern side of Pine Ridge Indian Reservation,” Redmont said, adding several others “would probably want to find at least one representative.” Noting “there’s more than three tiospayes,” Redmont admitted, “Okay that’s a financial burden on Powertech” to pay for more representatives in the field. However, he said, “They stand to make money on this. This is a financial enterprise they are embarking on. If it’s worth it for them to continue this, then they must be willing to invest in it. If they are willing to invest in it, why aren’t they doing it?” he asked, charging that company personnel are “Paying lip-service to their willingness to consult.”
Redmont went on to conclude: “We’re talking about money on one side and we’re talking about spiritual concerns on the other. That’s apples and oranges.” Wilmer Mesteth, the first Oglala Sioux Tribal Historic Preservation Officer (THPO), addressed the spiritual side of the discussion with an introduction in Lakota, saying, “I am from the Oglala Lakota nation. I’m a Lakota spiritual leader and I am well versed in the ways of my people. I was born here. “We are one of the largest indigenous nations on this continent. Our tradition states that we came forth on this earth here, not where Adam and Eve came forth in the Garden of Eden, wherever that is. That’s our story. “Our aboriginal land base was a vast territory. You have to clearly understand that,” he said. “Where our people roamed and coexisted with other tribes before it became the United States of America, we have respect for traditional ways. Our cultural ways are well understood between tribes. “When we are looking at the artifacts and talking about the history of the Black Hills, then we are the experts and I want that clearly understood we are the only ones who can determine those things and sometimes we are reluctant to share those things with archeologists. We are the only ones that are qualified.”
Michael Catches Enemy, who became the Oglala Sioux THPO in 2014, addressed the lack of a satisfactory government-to-government relationship between federal and tribal officials throughout the Powertech Azarga application process, which began at the same time as the opening of the tribe’s historic preservation office in 2009. “I am Lakota and I am the land,” he said in his introduction to the ASLB panel in Rapid City. “It may sound profound or unrealistic, but if we have sovereign nations, such as we carry ourselves, regardless of our status in most American minds, we still see ourselves with treaty rights,” he said. The 1868 Ft. Laramie Treaty guaranteed the Black Hills would remain under the jurisdiction of the Great Sioux Nation, Seven Council Fires, or Oceti Sakowin, as verified by a federal order granting payment of compensation to them for its subsequent unlawful seizure. The tribes have never accepted the payment, in order to maintain their claim on the area where renewed uranium mining and milling is proposed.