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common ground

Speaking Nation to Nation
Summer/Fall 1997, vol. 2(3/4)

Online Archive

*  To Go the Extra Mile

(photo) Yankton Sioux delegation arrives at the White House, 1905.

"[Glacier Bay National Park] was founded in the spirit of John Muir, with a strong tradition of scientific inquiry [and] an historic focus looking only as far back as the arrival of European explorers. Perhaps it was this short-sightedness that led to many of the conflicts to come."

Wayne Howell

by C. Timothy McKeown

To launch a multi-million dollar water project in the Southwest, the Bureau of Reclamation followed the NEPA process step by step and consulted with the President's Advisory Council on Historic Preservation as well as the preservation offices of New Mexico and Colorado. But because of one misstep—ignoring the consultation provisions of the Native American Graves Protection and Repatriation Act—the project has yet to be built, even though local tribes support it.

The bureau had been involved in the project—to divert water from the Animas and La Plata rivers to meet the region's farming, municipal, and industrial needs—from its inception in 1968. The Colorado Ute Indian Water Rights Settlement Act, enacted in 1988, expanded the project's goals to settle water rights claims by the Southern Ute and Ute Mountain Ute tribes. Although the tribes objected to disturbing native sites and burials, they eventually compromised and with the promise of jobs and royalties got behind the project.

Meanwhile, NAGPRA was passed, requiring the bureau to consult with tribes before excavating or removing Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony from federal lands. However, given tribal support—and a year 2000 deadline mandated by the settlement—the bureau slated construction to start in late 1991, without consulting under the statute.

The Four Corners Action Coalition and three other environmental organizations immediately filed a petition to enjoin the project in U.S. District Court, forcing the bureau to do further environmental studies (even though NEPA requirements had been met years before). Angered by the delay, the tribes and water districts threatened to counter-sue. The bureau restarted the project, announcing its intent to award an archeological contract to ensure that no National-Register eligible sites were in harm's way, as mandated by NHPA.

The coalition refused to drop its suit, this time invoking NAGPRA's consultation provisions. On September 22, U.S. Judge Weinshienk issued an injunction to stop the project. Using the statute, the coalition ultimately compelled consultation with tribes hundreds of miles outside the area of the project.

Beyond the cost of stopping a multi-million dollar endeavor for several years, the injunction may have also damaged the bureau's credibility. A university contracted to do the archeological work had already recruited a crew. "It takes some effort to put together a team," explains bureau program manager Larry Walkoviak. "I think the next time we go out and procure a staff to do this same kind of work there are likely to be some of these folks saying ‘Do we have to put ourselves through this?'"

Bureau archeologist Warren Hurley sees a positive result: BRec is now consulting with 26 different tribes on the project. "We have to go the extra mile," he says. "When the record of decision is issued on this project, we're going to be in court. Everything I have done is going to be picked over with a fine-tooth comb. I don't want to be blamed for this project going down the tubes."

MJB/EJL