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The Death of a Mound

Politics and Human Remains in Minnesota

Part 11

 

 -January 16, 2006-

What Happened at Black Dog in 1977

A Cautionary Tale

 

Bruce White

 

with

The Origin and Intent of Minnesota’s

Human Burials Act

 

Alan Woolworth

 

The removal and reburial of the remains of 55 human beings from the site of the Lincoln Mounds, a Native American cemetery in Bloomington, Minnesota, in the summer and fall of 2004, has provided the latest impetus for changes in the law governing the treatment of Native American cemeteries in Minnesota.

This push for a change in the law is a hopeful sign, but it must be tempered by the fact that this law has already evolved quite a bit since it was first passed over 30 years ago. This evolution often came in response to specific incidents, sometimes with the thought that the changes made would finally make it possible to do everything that could be done to preserve Native American cemeteries. But many of the changes in the law have not achieved the purpose intended, leading periodically to a push for further changes.

One of the formative incidents relating to the law protecting Native American sites occurred in 1977, at a burial site on private land less than two miles from the Lincoln Mounds, across the broad valley of the Minnesota River, near the site of Black Dog Village, a Dakota community of the 19th century and earlier, located in present-day Eagan, Dakota County, Minnesota. During highway construction, through a combination of circumstances, a known Native American burial area was threatened. Ultimately all remains located there had to be removed and reburied. As a result of this series of events a major change was made in the Minnesota law governing the treatment of Native American burial sites.

Perhaps what happened at the Black Dog Village cemetery site, how those involved went on to change the Minnesota private cemetery law, and how the changes made have worked out in practice, can provide information to guide those who will seek to change the law in the next few years in reaction to events like those at the Lincoln Mounds in 2004. Details about the events at Black Dog come from the records Minnesota Indian Affairs Council and the State Archaeologist. A close reading of those documents shows that the way those with the power use existing laws is as important as the laws themselves.

 Black Dog Village

In the early 19th century Black Dog Village, less than four miles from the mouth of the Minnesota River, was one of the closest Dakota villages to Fort Snelling. It was sometimes called Four-Mile Village by government officials. Joseph Nicollet said in 1838 that the Black Dog Village was known to the Dakota as Hohaanskae, or the village of the long avenue, probably a reference to the wide, straight valley of the Minnesota stretching above its mouth. Nicollet also mentioned another name for the village: Marhayouteshni, said to mean "those who do not eat geese." This is an odd name for a community that lives in an area that contains Long Meadow and Gun Club lakes, both known in the last two centuries for waterfowl hunting. The name may refer to the fact that the people who lived in the village traded all the geese they shot to whites at Fort Snelling and nearby trading posts and white communities. At some point in the past the chief of the village may have been called Black Dog. In 1820s and 1830s the chief’s name was Wamedi Tanka, or Big Eagle. He was succeeded by another chief named Grey Iron.

 

Black Dog Village, pictured in 1853, based on a drawing by Adolf Hoeffler.

A burial scaffold is pictured in the distance on the bluff at right.

 

The village was a spring, summer, and fall residence for Dakota people, located over time at various points along the bank of the Minnesota River. The village served as a base of operations for its residents. Even in the summer, they sometimes left for buffalo hunting and other activities. Traveling up the Minnesota River in mid-July 1823, the expedition of Major Stephen Long encountered the chief of Black Dog village not at his home but with family members, over a hundred miles above, close to the Cottonwood River, near present-day New Ulm. In September 1835 George William Featherstonaugh stated that the members of Black Dog village were "on the prairies hunting buffalo." In winter residents of villages such as these would have lived away from the Minnesota River, hunting in the woods. Following spring flooding, they returned to the river bank.

Even though the Dakota did not live all year long on the river, they left permanent marks of their residence along the river bluffs in cemeteries. A famous view of what must be a portion of these cemeteries is found in a watercolor by the Army officer Seth Eastman, who was in charge of Fort Snelling in the 1840s. Eastman, who had a relationship with a Dakota woman, recorded the landscape of the area and the life of Dakota people in a way unmatched by any other early artist. In a view now owned by the Minnesota Historical Society he depicted two burial scaffolds on a bluff above the Minnesota River at Black Dog. In the background of the painting, in the distance on the left bank of the river one can see faint image of Fort Snelling. Opposite it on the right is Oheyawahi or Pilot Knob, also a burial place of the Dakota.

A view like this is possible only in a few places today, but one such place is a slight rise adjacent to one of the Blue Cross-Blue Shield headquarters buildings along Highway 13, near the Cedar Avenue Bridge, a bridge which allows travelers from Dakota County to commute to Minneapolis and go shopping at the Mall of America. Standing on this rise one can plainly see across the course of the Minnesota River, Fort Snelling, Pilot Knob and to the northwest, the gleaming towers of the "Reflections at the Bloomington Central Station," the development at the former site of the Lincoln Mounds.

Another historic view of the Black Dog Village burial site is found in an engraving published in Harper’s Magazine in 1853, based on an artwork by the German artist Adolf Hoeffler, who traveled to the Upper Mississippi that year and recorded his observations and a few images. In his view of Black Dog Village, Hoeffler showed Dakota summer houses on the lower slopes of the river bank. In the background, higher up, one can make out a crude depiction of a burial scaffold.

Together, these works by Eastman and Hoeffler give a sense of the relationship of Dakota cemeteries to the villages where the people lived in the Minnesota and Mississippi valleys. These cemeteries were the permanent marker of where Dakota people lived and died for many generations, starting from long before whites came to the country. They also provide a link to all the various inhabitants of the valley who lived there thousands of years ago.

Excavations at Black Dog

In the late 19th century a mound group of 104 mounds was mapped in the area of Black Dog Village. The first recorded excavation of a Black Dog cemetery took place in 1943 when Lloyd Wilford, a University of Minnesota archaeologist, excavated a site disturbed by a molding-sand pit on the farm of Thomas Keneally in Eagan Township.

 

Seth Eastman's view of burial scaffolds at Black Dog Village, around 1847.  

Pilot Knob is pictured in the distance between the two scaffolds.

Orginal in Minnesota Historical Society collections.

 

Wilford found four historic Dakota burials in rough wooden coffin. Included with the burials were a variety of metal trade artifacts, glass and shell beads, and a pipestone pipe. It has been argued that the presence of coffins would date the remains to the period following the arrival of protestant missionaries in the area in 1834. The well-known missionaries Samuel and Gideon Pond made coffins for the Dakota. However, wooden coffins were also provided to the Dakota by the military post at nearby Fort Snelling. Burial in wooden coffins may have become a sign of prestige for the Dakota, not a sign of the acceptance of Christian rituals. Several of Eastman’s paintings of burial sites in the area of Fort Snelling, including the image of the Black Dog site, appear to show wooden coffins placed on top of the burial scaffolds.

In 1963 The Science Museum of Minnesota excavated a burial site along the river bluffs across the river from the Black Dog power plant to the south of the Black Dog Village site. The location was the River Hills housing developmenta development designed to contain at least 1,000 homesin Burnsville, the next township south of Eagan along the Minnesota River. The first evidence of human remains was uncovered by a bulldozer operator who was grading the site. Over eleven days seven burial pits containing what were estimated at the time to be at least 56 human beings were excavated. Many of these were bundle burials dating to thousands of years ago. Later work by anthropologist Marcia Regan in a 1990 report estimated that the remains of 36 individuals were included in what was found at the River Hills site.

In June 1968 another burial site was uncovered a mile to the north along Dakota County Highway 13 which was to be an industrial park. Bones were first uncovered by a bulldozer operator. Twenty-four burials consisting of around 40 individuals were found, some buried with European trade goods, some buried in wooden coffins. The remains and artifacts were removed by staff of the Minnesota Historical Society (MHS). An article in a local newspaper stated the trade goods, consisting of fire steels, gunflints, buttons, copper bracelets, broaches, knives, files, hatchets, beads, and pipestone pipes would be used at Historic Fort Snelling, "to interpret the contact period between the whites and Indians." It is not known if this ever happened, but in 1988 the human remains and grave goods were turned over to Hamline University for eventual repatriation. They were later reburied at the Lower Sioux Community at Morton, Minnesota.

Another burial site at Black Dog was discovered in January 1977, as a result of a report from a concerned citizen. The site was included in the same quarter-section where the first Black Dog burial was excavated in 1943. It was affected because it was to be used as a borrow pit for gravel to be used in the construction of a new Cedar Avenue Bridge. Several years before this, in 1974, staff of the Minnesota Historical Society had examined the plans of the Minnesota Department of Transportation (MnDOT) and determined that the bridge and highway would have no effect on any historic properties. At the same time Elwin Benton and Vernell Wabasha of the Minnesota Indian Affairs Intertribal Board (MIAIB or Indian Affairs Board), the predecessor of the present-day Minnesota Indian Affairs Council, had visited the area and determined that it was not a burial area.

What had not been anticipated, however, was that MnDOT’s contractor, Park Construction, would decide to use property with a Native American cemetery on it, owned by a man named Vogelpohl, for the borrow pit for highway construction. The contractor planned to remove a segment of Minnesota River terrace approximately 1,800 feet by 1,500 feet to a depth of 20 to 30 feet—up to three million cubic yards of earth. In addition, peat fill would be deposited to a depth of 30 to 40 feet in the Minnesota River’s floodplain. The digging was expected to impinge directly on the area where Lloyd Wilford had found remains in 1943.

According to an account by Leslie D. (Les) Peterson, Highway Archaeologist with the Minnesota Historical Society, examination of the borrow area showed that

large areas of the affected terrace have been severely disturbed by the quarrying of moulding sand and associated activities. This disturbance was further documented by 102 3" test borings made by the Minnesota Department of Transportation between January 6th and 11th, 1977.

These test borings showed that 90% of the area had already been significantly altered, to the extent that archaeological data would have been destroyed. The only portion of the site yet undisturbed consisted of the narrow lip of the terrace, an area which just happened to include the neighborhood of the 1943 Keneally site. While it was not known if any remains were still at this site, meetings were held with officials of the construction contractor to inform it of what should be done to any human remains found. It was suggested that the contractor avoid the undisturbed portions of the property or, in the case of finding any human remains, call a halt to work on the property until consultation could take place with the Indian Affairs Board and the State Archaeologist. Subsequently it was suggested, according to an account written by Bob Dodor of the Indian Affairs Board, that any work in the area should involve scraping the ground "six inches at a time with a bulldozer in the presence of archaeologists and staff of this agency to avoid the possibility of disturbing graves."

On Wednesday, February 9, 1977, the contractor called the Indian Affairs Board to inform officials that work would begin on Friday. On Friday Les Peterson, an assistant, and Bob Dodor watched as the ground was scraped. The archaeologists walked behind the bulldozer as it scraped the ground. Nothing was found that morning. Dodor left but later that day he got a call from Les Peterson:

He reported that the bulldozer had turned up some bone chips, remnants of beadwork and a nail, probably from a coffin. At that point work was immediately suspended.

Another account written by Les Peterson suggests that this may have occurred a day earlier on February 10. Peterson stated that after the discovery the site was covered with a sheet of plastic, in turn covered with earth, to prevent further disturbance and freezing of the ground.

Around this time Dodor spoke with Les Peterson about what could be done to preserve this site from further disturbance. Dodor said that Peterson told him that the 1976 law on burial grounds "did not apply because it refers to private land" and that the owner of the land in question "is really interested only in seeing that the money from the fill keeps coming in, he really doesn’t care much about anything else."

Dodor informed Vernell Wabasha, Iola Columbus, Pearl Blue, and Edith Crooks, all Dakota elders associated with the Indian Affairs Board. The following week a meeting was held with Dakota representatives who "unanimously opposed any plan to rebury the bodies or further disturb the burial ground."

Evolution of Minnesota Indian Cemetery Laws

Prior to 1976 there was no specific protection in state law for Indian burial grounds though there was a provision in section Minnesota Statute 307.08 that forbade the destruction of tombstones and other features of cemeteries and the discharge of firearms in such places. This provision was amended in the 1976 legislative session to forbid damage to any "authenticated and identified Indian burial ground." In addition to several other provisions the law also provided that

Subd. 3. The state archaeologist and the Indian affairs board shall authenticate and identify Indian burial grounds when requested by the political subdivision which has title to Indian burial grounds.

Subd. 4. The cost of authentication and identification shall be the responsibility of the political subdivision requesting said identification and authentication. . . .

Subd. 6. The Indian affairs board must approve any request to relocate an authenticated and identified Indian burial ground.

These features of the law provided that Indian cemeteries must be protected from destruction and that the Indian Affairs Board had to give permission to relocate an Indian burial ground, but gave little specificity about what should be done to "authenticate" and "identify" Indian burial grounds, or what specifically could be done to save them from destruction. Also it was unclear how the various provisions might be applied in relation to burial grounds on private property.

When Minnesota tribal leaders met in February 1977 to talk about the situation at the Black Dog site, there was there was discussion of various funding sources that could be used too protect the site. Mention was made of Public Law 93-291, enacted May 14, 1974, which provided "some sort of financing for acquisition of land with prehistoric, historic and/or archaeological significance." Vernell Wabasha discussed the possibility of getting money for the acquisition of the Black Dog burial site from federal Field Solicitor Elmer T. Nitzschke in Minneapolis, but it was not clear how feasible this was. Another possibility was state parks and recreation money, but this too was only a possibility. In any case the unanimous feeling of Dakota representatives was that further disturbance of the cemetery site should be prevented, one way or another.

Discussion continued in the following week with Park Construction. The company’s president, Dick Carlson, repeated that the company "would do everything possible to cooperate." However, according to Bob Dodor of the Indian Affairs Board

the Park president pointed out that if the burial area was left untouched, it would mean that it would be left stuckout [sic] up maybe 30 feet high after all the land around it had been mined. In view of the sandy nature of the soil there, he said, erosion would wash the area and the graves away within two years. So he wondered if this was more harmful in the long run than moving the graves right now. Furthermore, he indicated that Vogelpo[h]l, the private land owner already had been raising hell about being "told" what he could do on his own land, and had, according to Park, threatened to get an independent dozer operator on the scene and push "the whole damn works over."

At this point it was clear that the law could prevent this outright destruction of a burial site but it seemed that the Indian Affairs Board had little leverage. There was no requirement in the law that there be a buffer area that might help to preserve cemeteries such as this one. By law, removal of any graves could be prevented in the short run, but erosion would endanger them in the long run. And in any case it was unclear at this point how many remains were actually present at the site. Among the Dakota, Iola Columbus now seemed "to agree that maybe the most proper thing that could be done in the long run in this situation would be to remove the graves."

Further conversation took place involving State Archaeologist Elden Johnson, Russell Fridley of the Minnesota Historical Society and some of his staff, and Bob Dodor and Don Bibeau of the Indian Affairs Board. It was determined to contact the Dakota County Attorney, perhaps to forestall rash action on the part of landowner.

 Coming to a Decision

Further work was done in February to determine what remains might actually exist at the property. On February 22 members of the Highway Archaeology staff under the supervision of Les Peterson "supervised the stripping of the last remnants of undisturbed soil along the terrace lip." The work revealed six more burial areas "indicated by either pits or human remains." Each site was recorded, photographed, and covered with plastic, pending a decision as to what would happen to them. In addition to these intact burial sites, scattered remains were found at two other sites. These scattered remains were removed, bagged, and labeled. The seven burial areas and the scattered remains contained grave goods which dated to the 1800 to 1854 period. Peterson wrote that "the coffins utilized have almost completely decayed away."

Peterson would later write that the remains found were of "questionable" archaeological significance, but that there were "great social implications involved with their treatment and disposition." As a result all the non-Indian parties involved deferred to the Indian Affairs Board, which of course they were required to do under law. After the location of the intact burial areas there followed, Peterson wrote, "a six-month period of consultation during which the Indian Affairs office solicited opinions from Native American peoples, legal authorities and archaeologists in an attempt to find the most reasonable solution to the problem of the endangered burials."

An early decision to remove the remains was followed by extensive discussions on how to pay for that removal. During February and March further conversations took place between Indian Affairs and Park Construction. According to Les Peterson, it was determined that "the most feasible means of insuring the integrity of any remaining burials would involve the removal and reburial of the remaining burials in a secure location." This was the conclusion reached by the organization called Minnesota Sioux Inter-Tribal, Inc. (also known as the Sioux InterTribal Council), headquartered at Granite Falls, which represented the Upper Sioux, Lower Sioux, and Prairie Island communities. At its March 29 meeting the organization passed a resolution "requesting removal of the Indian remains found at the Dakota County site to a burial site to be determined by the Minnesota Sioux InterTribal Council." The resolution signed by the groups chairman Norman Campbell and its secretary Edith Crooks stated that the basis for the decision was that "the present owner of the property is unwilling to take measures to preserve the burial mounds in their present location."

Removal of soil for highway construction continued outside the defined burial site. Don Gurnoe, who later became the representative of the Indian Affairs Board, would write that "by spring [the burial ground] jutted upward like a wide pillar," as had been predicted by the president of Park Construction. Gurnoe added: "There was worry that the burial ground would be toppled by rain and erosion, or disturbed by treasure seekers and grave robbers."

By June 1977 Gurnoe, working with the Sioux InterTribal Council, received permission from the Shakopee community for reburial of the remains there. Gurnoe sought funding necessary to pay for the reburial. At the end of June, however, a new resolution of the Sioux Inter-Tribal Council reported that the Lower Sioux Community requested that the remains be reburied at the community cemetery at Morton.

Paying for the removal and reburial, however, continued the be a sticking point. Because of the imprecision in state law, it was unclear who had the responsibility to pay for the removal. The problem was addressed in a resolution of the Indian Affairs Board, passed on July 19, 1977 and signed by the board’s chairman Roger Jourdain of Red Lake. The resolution suggests a more contentious relationship between the Indian Affairs Board and the developer than suggested in earlier documents:

Whereas Park Construction received the contract for the bridge construction on Highway 13 in Dakota County, and;

Whereas, this area includes the historic Blackdog Mbdewakanton [sic] Village, and;

Whereas, Park Construction was warned by the Minnesota Department of Transportation prior to their selection of a backfill site that contained a Dakota burial site and;

Whereas, Park Construction did proceed to utilize that site despite the warnings, when alternative sites were available and;

Whereas, removal of backfill from the site threatens to destroy the burial site making removal of the remains necessary and;

Whereas Park Construction refuses to assume any financial responsibility for removal and proper reinternment [sic] of the remains.

Therefore be it resolved that the Minnesota Indian Affairs Intertribal Board protest in the strongest terms possible to the Minnesota Department of Transportation the actions of Park Construction and seek financial regress [redress] from Park Construction for the costs of proper removal and reburial. In compliance with Minnesota statute 307.08 Indian Burial Sites.

Perhaps as a way of encouraging the contractor to help resolve the situation, Al Pulk of MnDOT wrote to Park Construction stating that:

The provisions of 1714 of the Specifications provide in part that the State be held harmless from all suits, actions and claims of any character on account of the operations of the said Contractor. We demand that this Specification be strictly adhered to.

Meanwhile, steps were taken by the Indian Affairs Board to authenticate the burial grounds on the Vogelpohl property and notify the landowner, county officials, and local newspapers of the requirements under state law. On August 3, 1977, Don Gurnoe of the Indian Affairs Board wrote to the Lakeville Times. Among other things, Gurnoe discussed the Minnesota Statute relating to Indian burial sites:

As you can see, it does very little to help us preserve burial sites and particularly when the grave sites are located on private land. I anticipate this agency will be attempting to modify 307.08 during this coming legislative session to provide a more effective and clearcut legal tool in our ongoing attempts to preserve Indian burial sites here in Minnesota.

Of particular concern was the fact that there was no mechanism to pay for the reburial of any Black Dog burial remains. Ojibwe leader Ruth Myers met with Russell Fridley of the Minnesota Historical Society and Bob Dodor of the Indian Affairs Board in early August about the matter. Fridley seemed to believe that Park Construction was going to pay for the removal. Myers believed that this was not the case and that Fridley should help find the money or foot the bill. Fridley was all for getting the governor involved. However Bob Dodor informed Myers that Indian Affairs Board was going to take care of the cost itself "because of the press of time caused by the continuing monsoon season eroding the burial area and the threats of the less-than-compassionate landowner." However Dodor agreed with Myers that "we should work with the historical and archaeological types and the legislature in developing some forward looking laws on Indian archaeological and historical interests and protection of old burial grounds."

The work of removal was set at one point to begin on the morning of August 11, 1977 but was delayed again due to the continuing problem of finding the money. It was now estimated by Don Gurnoe that the removal and reburial of the remains would cost approximately $1,700, with tools and equipment provided at no cost by the Minnesota Historical Society. Removal costs were estimated to be primarily the time required for one archaeologist and four workers over a week. Reburial costs included the costs of transportation, gravesite preparation, and Christian and traditional ceremonies, including a feast. Gurnoe tried to submit a budget to Park Construction, but the firm had a "reluctance to discuss financial responsibility."

Ultimately $600 in cash was provided by Indian Affairs Board. To help cut costs, Gurnoe was able to obtain the promise of volunteers among the local Dakota. Les Peterson agreed to supervise and assist, as his schedule permitted. Gurnoe wrote to to Elden Johnson on August 17 stating:

As you are well aware, we’ve had nothing but problems concerning the preservation, recovery and reburial at Blackdog. Park Construction [is] obstinate in their financial responsibility and landowner continue[s] his threats.

The inherent weakness in the Indian Burial Statute 307.08 allows us no legal grounds for continuing the struggle.

Removal of remains finally took place starting Tuesday, August 23 and ending Thursday August 25. In all the seven defined burial areas contained the remains of at least 11 individuals. These people were generally buried supine with head to the east, away from the river. All remains showed evidence of wooden coffins and a variety of European trade goods, suggesting the 1800 to 1850 period.

Because of the time constraints, the excavation was primarily a salvage operation, not one for scholarly purposes as Wilford’s excavation had been in 1943. Les Peterson wrote:

The excavations at the Black Dog site were conducted as a salvage disinterment with the primary goal of locating all endangered human remains to insure reburial in a secure location. Both Indian Affairs representatives and MHS archaeologists actively participated in the disinterment and all associated cultural materials and feature associations were recovered and/ or recorded as possible within the constraints of the conditions of the excavation. Controls over provenience and recording were minimal but basic records, sketches and photographs of the observed data were obtained.

Over the three-day period twelve archaeologists from MHS staff were involved, including many who are now prominent in the field. Remains and burial materials were carefully removed, but at what must have been a hectic pace, from all known sites and were placed in the protective care of the Minnesota Historical Society at Fort Snelling where they would be cleaned, indexed, packaged, and protected until their reburial at Lower Sioux. In all the work at the site took over 150 man hours. Another 150 man hours was to be spent in the processing. A subsequent estimate of the reburial stated stated that Indian Affairs costs were over $1,200. Minnesota Historical Society costs were estimated at $2,300. A later commentator stated: "It is estimated the cost of the reburial for the Blackdog site if not geographically located near St. Paul would have been well in excess of six thousand."

Reburial took place on September 10, 1977, at Morton, on the land belonging to the Lower Sioux Community.

Changing the Law

There were many lessons to learn from what happened at Black Dog in 1977. Arlo Hasse, a proponent of Indian burial protection, quoted in a newspaper article in September 1977, stated that if the discovery of human remains at Black Dog had occurred twenty years earlier, "the bones would have been transported to a museum shelf somewhere instead of [being] buried properly." From the point of view of Les Peterson, in August 1977, the whole thing was "a disastrous project." Writing to Don Gurnoe he stated that he hoped the manner of the removal have thus "mitigated" the experience to make it "at least minimally satisfactory to you, your associates, and the concerned American Indian communities."

From the point of view of Indian people the experience illustrated the need to strengthen laws to give more control over what happened to American Indian cemeteries. As early as October 1977 Don Gurnoe summarized the reason for seeking to change the law in the fact that "inequities in current law making it legally impossible to protect Indian burials existing on private lands." The law made the authentication of a burial ground contingent on a request by a political subdivision owning the land. In the case of Black Dog, Gurnoe later wrote "the only person having title to the land was the unsympathetic [private] landowner." If burials were discovered on private land there was no allocation of money or any procedures to be followed under the law.

As a result of these problems there was a push to change the law. Veteran archaeologist Alan Woolworth, then with the Minnesota Historical Society, summarized his involvement in the writing of a new law in a recent account, reprinted below. As Woolworth states, the bill changing the law was submitted at the legislature in 1978 and was passed in early 1980 and signed into law by the governor on April 3 (see below). In his own account of the passage of the bill, Don Gurnoe noted that the law now looked at the problem of unmarked burials as "an issue of human dignity and treats it cross-culturally." More responsibility was given to the Minnesota Historical Society and Indian Affairs. Also the bill allocated $15,000 for the costs of identification, posting, removal and reburial of remains. One significant change was an amendment to the provision giving the Indian Affairs board the power to approve any request to relocate authenticated and identified Indian burial grounds. This new provision stated that "if large Indian burial grounds are involved, efforts shall be made by the state to purchase and protect them instead of removing them to another location."

Today, Section 307.08 of Minnesota Statutes still bears the marks of the extensive changes made in the law in 1980. In turn those changes were brought about in large part by the events at the Black Dog cemetery in 1977. It is ironic that now, action at another site, directly across the river in Bloomington from Black Dog, should lead to a new push for changes in the law. Unfortunately some of the provisions passed by the legislature in 1980 to prevent the necessity of removing Indian cemeteries, particularly the provision for dealing with "large Indian burial grounds," did not figure at all in the decisions in relation to the Lincoln Mound. Present-day MIAC officials state that this provision has only been used once or twice in their memory. They suggest that the reason they did not use the law in 2004 was that there simply was not enough time to get an appropriation to protect the Lincoln Mounds Site. However, these officials do not fully explain why they did not take a stronger stand to use their various powers under the law.

 The geographical relationship between the 1977 Black Dog Burial site, the Lincoln Mounds,

 and the Mall of America, on either side of the Minnesota River, is shown in this aerial view,

 based on an image from Google Earth

 

It seems evident that Indian people have more power and more leverage now than in 1977 in dealing with the problem of protecting Indian cemeteries. But which Indian people are those involved in the process? Even if Indian representatives included on the Indian Affairs council are key to the decision-making dictated by state law, there is no guarantee as to what groups and what people will be consulted in the process. Current guidelines developed by the Indian Affairs Council and the State Archaeologist hold that in the case of ancient remains which cannot be connected to a particular modern-day Indian group, the closest existing federally-recognized community will be the one consulted. In the case of the Lincoln Mounds that community was Shakopee. It was only later on in the process that other Dakota communities were consulted. As to which people in the communities involved had a real say in what happened, and how the decision was made by those communities, those are different questions, for which there are no answers in the public record.

Indian people had leverage available to them under law in relation to the Lincoln Mounds, but the result was similar in many ways to what happened at Black Dog, almost thirty years ago: A major Indian cemetery was removed from the landscape with the direct participation of the only state agency that has the power to allow such a removal to take place. The excavation was more careful and detailed than in 1977, but the result was disturbingly similar. Therefore it is unclear at this point what changes in the state law could have made a difference in the choices made by state officials at the Lincoln Mounds.

*******

The Origin and Intent of Minnesota’s Human Burials Act

Alan Woolworth

In the summer of 1978, Don Gurnoe, Executive Secretary of Minnesota’s Indian Affairs Intertribal Council (now the Indian Affairs Council) called me to suggest that I write an act to provide a dignified, orderly process for handling the many human skeletal remains that were found outside regular cemeteries each year. Almost all of them were found during highway construction, or at summer homes around Minnesota’s lakes and rivers.

Naturally, Don was mostly concerned with American skeletal remains, but I told him that I wished to prepare legislation that would deal with all such human burials, be they Indian, Viking, or White pioneer’s remains!

During that late summer, I used portions of my noon lunch hour to prepare this legislation, and Don and I consulted frequently about it. Finally, in November 1978, a friendly legislator introduced our prepared legislation into the legislative process, and we testified before a Senate committee about the necessity of enacting this legislation. It fell through the cracks then, but we re-introduced it in early 1980, and were much gratified to have it enacted in April of that year.

Neither Don Gurnoe nor myself consulted with the Minnesota Historical Society or the State Archaeologist about this legislation, but it has had general acceptance in the archaeological community, and by the public. Fortunately, Minnesota thus avoided the emotion laden confrontations that took place in other midwestern states such as Iowa and Nebraska. Since 1980, this act has been revised a number of times, and is one of the major pieces of legislation that supports the activities of the State Archaeologist’s Office.

I do not claim that this or any other legislation will meet everyone’s needs or be in accordance with their wishes. We live in a pluralistic society formed by many different ethnic groups with their own traditions and beliefs. Somehow, we must compromise so that our society can function well and deal with the basic needs of each of its members.

*******

Minnesota Laws, 1980

Chapter 457Senate File No. 975

Changes or additions to the previous law are indicated by underline, deletions by strikeout.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA

Section 1 Minnesota Statutes 1978, Section 307.08, is amended to read:

307.08 DAMAGES: ILLEGAL MOLESTATION OF HUMAN REMAINS; Subdivision 1. It is a declaration and statement of legislative intent that all human burials and human skeletal remains shall be accorded equal treatment and respect for human dignity without reference to their ethnic origins, cultural backgrounds, or religious affiliations. The provisions of this section shall apply to all human burials or human skeletal remains found on or in all public or private lands or waters in Minnesota.

Subd. 2. Every person who shall wilfully or knowingly destroy, mutilate, injure, or remove human skeletal remains or human burials, or remove any tombstone, monument, or structure placed in any public or private cemetery or authenticated and identified Indian burial ground unmarked human burial ground, or any fence, railing, or other work erected for protection or ornament, or any tree, shrub, or plant or grave goods and artifacts within the limits thereof, and every person who, without authority from the trustees or owner , state archaeologist, or Indian affairs intertribal board , shall discharge any firearms upon or over the grounds of any public or private cemetery or authenticated and identified Indian burial ground, shall be guilty of a misdemeanor.

Subd. 2 3. Every authenticated and identified Indian burial ground shall may be at the discretion of the state archaeologist and the Indian affairs intertribal board, posted for protective purposes every 75 feet around its perimeter with signs listing the activities prohibited by subdivision 1 2 and the penalty for violation of it.

Subd. 3 4. A qualified professional archaeologist approved by the state archaeologist and the Indian affairs intertribal board shall authenticate and identify Indian burial grounds when requested by the political subdivision in which has title to the alleged Indian burial grounds are located, or by a concerned scientific or contemporary Indian ethnic group.

Subd. 4 5. The cost of authentication and , identification and marking of unmarked or unidentified burial grounds or burials shall be the responsibility of the political subdivision requesting said identification and authentication state.

Subd. 5 6. The size, description and information on the sign signs must be approved by the Minnesota state historical society. The political subdivision which has title to the Indian burial ground must supply the signs and provide for their installation.

Subd. 7. All unidentified human remains or burials found outside of platted, recorded or identified cemeteries and dating prior to 1886 A.D. shall be dealt with according to the provisions of this section. If such burials do not contain manufactured trade goods or can be established to date prior to 1700 A.D., as determined by a qualified professional archaeologist, they shall be dealt with in accordance with provisions established by the state archaeologist. If such burials date after 1700 A.D., as determined by a qualified professional archaeologist, efforts shall be made by the state archaeologist and the Indian affairs intertribal board to ascertain their tribal identity. If their probable tribal identity can be determined, such remains shall at the discretion of the state archaeologist and the Indian affairs intertribal board, be turned over to contemporary tribal leaders for disposition. If it is deemed desirable by the state archaeologist or the Indian affairs intertribal board, such remains shall be studied by a qualified professional archaeologist before being delivered to the tribal leaders.

Subd. 6 8. the Indian affairs intertribal board must approve any request to relocate an authenticated and identified Indian burial ground. If large Indian burial grounds are involved, efforts shall be made by the state to purchase and protect them instead of removing them to another location.

Subd. 9. The department of natural resources, the department of transportation, and all other state agencies and local governmental units whose activities may be affected, shall cooperate with the state archaeologist and the Indian affairs intertribal board to carry out the provisions of this section.

Subd. 10. When Indian burial grounds are known or suspected to exist, on public lands or waters, the agency or department controlling said lands or waters shall submit construction and development plans to the state archaeologist and the Indian affairs intertribal board for review prior to the time bids are advertised. The state archaeologist and the Indian affairs intertribal board shall promptly review such plans and make recommendations for the preservation or removal the human burials or remains, which may be endangered by construction or development activities.

Sec. 2. APPROPRIATION. The sums set forth in this section are appropriated from the general fund to the Indian affairs intertribal board for carrying out its duties relating to Indian burial grounds, to be available for the fiscal year ending June 30 in the years indicated.

1981

$15,000

Sec. 3. REPEALER. Minnesota Statutes 1978, Section 149.07, is repealed.

Approved April 3, 1980

Further Reading

Dodor, Bob. "Report on Indian Burial Grounds," typed manuscript in Minnesota Indian Affairs Council records, Minnesota Historical Society.

Gurnoe, Donald G. "The Minnesota Human Burial Law," Minnesota Archaeologist, 39 (1980): 150-54.

Peterson, Leslie D.

Wilford, Lloyd A. "Indian Burials Near Black Dog’s Village," Minnesota Archaeologist, July 1944, 93-97

See also Arzigian, Constance M. and Stevenson, Katherine P., Minnesota’s Indian Mounds and Burial Sites: A Synthesis of Prehistoric and Early Historic Archaeological Data, 2003, page 371.

Corrections

January 19, 2006. The original version of this essay stated that 56 sets of human remains were found at the River Hills Site by archaeologists of the Science Museum of Minnesota in 1963. This statement was based on a newspaper article and a Science Museum publication from 1963. Later analysis by Marcia Regan estimated the number of human remains in the materials found at the site to be 36. See B.H., Brown P.D., and Regan M.H., " Osteological Analysis of Human Skeletal Material: Science Museum of Minnesota Collections." A Report to the Science Museum of Minnesota, 1990. This report states: