The Northern Pomo people of California thrived in the lush wetland valley known as Bito’m-kai for millennia, fishing salmon from percolating creeks, gathering natural medicines and managing natural resources to feed thousands.

By the time anthropology researcher Samuel Barrett arrived in the early 1900s, many of the Pomo village sites he assiduously recorded had been abandoned. Barrett noted that the village of Yami, on the south shore of the valley, once “supported a considerable Indian population.”

More than a century later, state road building officials emailed chairmen of the Pomo tribes: Yami had been affected during nighttime construction of the Willits Bypass, a $300 million, 5.9-mile roadway that would cleave the valley. The village site had not been recorded by the California Department of Transportation’s archaeologists. Contractors had pierced it with 1,100 wick drains burrowing 60 feet underground and covered the area with tons of fill dirt.

Although it received no national media coverage, the 2013 destruction of Yami presaged what happened at the Standing Rock Sioux Reservation on Sept. 3 – one of the most infamous days of the Dakota Access Pipeline protests. With cameras rolling, contractors started pushing dirt over burial sites within view of protesters.

The sites’ existence had just been disclosed in a court deposition by Tim Mentz, a tribal member and cultural resource expert. Mentz described numerous rare sacred sites and burial grounds missed in surveys conducted without tribal guidance.

“Kill the black snake” – a call to action against the fossil fuel industry – became a common rallying cry of the protest, but the Standing Rock Sioux Tribe’s original lawsuit opposing the oil pipeline didn’t rely on environmental law. Instead, the tribe argued that the Army Corps of Engineers had neglected its responsibilities under the National Historic Preservation Act to consult with the tribe and make good-faith efforts to avoid or limit damage to its cultural sites.

The somewhat Byzantine regulations known as Section 106 are, according to many attorneys and activists, tribes’ best legal tools to preserve the cultural sites that bind them to their ancestral homelands. However, federal officials face no risk of fines or jail time if they violate Section 106, as they might for violating environmental regulations. And agencies self-enforce rules on their own projects, a classic case of the fox guarding the henhouse, say many archaeologists, tribal officials and attorneys.

“Imagine a company wanted to build a pipeline through the Sistine Chapel or Arlington (National) Cemetery without regard to anyone who cared about those places?” said Stephanie Tsosie, associate attorney for Earthjustice, an environmental law firm litigating on behalf of the Standing Rock Sioux. “All the sacred sites we were seeking to protect have been destroyed. If the intent of the law is to protect sacred sites, it’s a sign something has to change.”

In the case of the Willits Bypass, a visual survey by Caltrans and the Federal Highway Administration had recorded only one historical site, missing Yami and dozens of others documented by Barrett and clearing the way for desecration.

The Coyote Valley Band of Pomo Indians and Round Valley Indian Tribes filed a federal lawsuit in 2015 seeking damages from Caltrans and the Federal Highway Administration for allegedly conducting a recklessly incomplete archeological review and engaging in insincere tribal consultation – violations of federal historic preservation law. The suit has made its way through the court system, with a federal judge denying Caltrans’ motion to dismiss in January, a significant victory for the tribes.

For Pomo tribal members, witnessing the flaying of the valley recalled painful 19th-century history, when white settlers renamed the area Little Lake Valley and attempted to erase the Pomos through state-funded extermination campaigns and forced removals to remote military reservations.

“Every time they dug up those sites, they uncovered the pain of our ancestors. We feel that pain, and they don’t understand that,” said Priscilla Hunter, tribal elder for the Coyote Valley Band of Pomo Indians. “It was like our ancestors had to relive the killings, the forced marches and beatings all over again.”

Caltrans claims compliance

In a 2015 blog post, Caltrans officials said no cultural sites were damaged by construction and asserted they were in compliance with the law.

The Federal Highway Administration delegated its Section 106 responsibilities to Caltrans for projects requiring federal funding in 2004 – a move the Pomo tribes denounce, arguing that it creates even less of a buffer between Caltrans, the project manager and decisions about historical sites that could impede projects.

“With this agreement, the entire process is shortened, promoting streamlining and efficiency, without compromising the historic properties,” Caltrans officials wrote in an email to Reveal from The Center for Investigative Reporting. “When requested by a tribe, the (Federal Highway Administration) can retain the responsibility for government to government consultation.”

A report published in January by the U.S. Departments of the Army, the Interior and Justice verified that many tribes believe the kind of Section 106 violations that allegedly occurred with the Willits Bypass and the Dakota Access Pipeline are widespread and endanger their cultures.

The report was developed through listening sessions with dozens of tribal governments and organizations. Common Section 106 complaints emerged: poorly conducted tribal consultations, incomplete archaeology reviews, archaeologists unfamiliar with indigenous cultures and history, and the inherent conflicts of interest that arise when cultural resource staff are paid by project proponents.

“Standing Rock really proves to be the rule rather than exception; none of the laws guarantee tribes any protection,” said Chip Colwell, senior curator of anthropology at the Denver Museum of Nature & Science. “And these are communities the government systematically tried to annihilate, and they’re desperately fighting for every aspect of what they have left.”

Thomas Tracy, district counsel for the Army Corps in Omaha, Nebraska, said he can’t comment on pending litigation. In a September joint statement by the Departments of the Army, the Interior and Justice, officials pledged to conduct more research with tribal input before authorizing the Dakota Access Pipeline’s construction under Lake Oahe at Standing Rock and agreed the situation underscored the need to examine whether nationwide reform of Section 106 was needed.

When the Army Corps denied the permit for the Lake Oahe easement in December, Jo-Ellen Darcy, the Army’s assistant secretary for civil works, acknowledged in a statement that “the best way to complete that work responsibly and expeditiously is to explore alternate routes for the pipeline crossing.”

Yet by Feb. 7, a few weeks into President Donald Trump’s administration, the Corps granted the easement and declared that its review was done and construction would move forward.

Tribes say they’re an afterthought

One sunny, windswept afternoon in Northern California’s Shasta-Trinity National Forest, government officials stood around a picnic table, staring at a Stanford University researcher’s report about Winnemem Wintu sacred sites. Traditional Chief Caleen Sisk watched pensively, blowing smoke from her pipe.

The campground where they gathered that day in October 2012 is home to a constellation of sacred sites integral to the tribe’s coming-of-age ceremony for young women. Sisk estimates about 90 percent of the tribe’s sacred sites have been underwater since the 602-foot Shasta Dam flooded 26 miles of the Winnemem Wintu’s McCloud River homelands in the 1940s.

Since 1980, the U.S. Bureau of Reclamation has been studying the possibility of raising the dam by 18.5 feet to expand the capacity of the reservoir. That, according to the Stanford researcher, Lyla Johnston, would inundate the campground for much of the year. One site that the group toured, highlighted in the report, was the Suckerfish Pool where Winnemem spiritual healers receive teachings from the spirit world.

Yet when the reclamation bureau issued its final feasibility study on the dam raise three years later, only a few paragraphs addressed the Winnemem Wintu, referring to the impacts on their sacred sites as “unresolved issues.” The project currently is stalled, as its $1.3 billion price tag has been deemed too costly and inefficient for taxpayer support.

In December, the bureau released a draft plan for another project to truck and haul Chinook salmon around the dam, returning them to the glacial waters of the McCloud River. Much to the Winnemem’s consternation, some of the proposed fish collection entrapments were slated to be built at the Suckerfish Pool.

The reclamation bureau relocated the fish collection site when the tribe protested, but the Winnemem’s experience illustrates how consultations can appear perfunctory or even farcical to tribes. Tribal officials report that they often aren’t notified about a project until it’s a “runaway train speeding downhill,” with a great deal of money invested in a near-finished project design.

“We’ve been here since day one, dancing for this river, singing for this river, but they often act like they wish we weren’t here,” Sisk said. “We have a right to have a seat at the table and be decision-makers. This process just seems to help them run us over faster.”

Often, tribes and agencies might not even agree about what constitutes an official consultation. Some agencies consider the consultation box checked if they send form letters that vaguely outline projects and ask for information about cultural sites in the area, disclosures tribes might be wary to make if they’ve been burned in the past by the agency or if doing so violates cultural taboos.

In the Standing Rock case, the judge agreed with the Army Corps that email correspondence, letters and attempts to schedule meetings that tribal officials either failed or refused to attend constituted meaningful consultations. The decision noted that tribal officials also refused to meet with Corps archaeologists because their surveys were limited to immediate drilling areas.

However, a recording of a meeting between the Standing Rock Sioux and officials from the pipeline builder, Energy Transfer Partners, revealed that the tribe had vehemently objected to the pipeline route in September 2014 – 20 months before construction began in North Dakota, South Dakota and Illinois. Tsosie, the Earthjustice attorney, also noted that the Corps failed to send the tribe vital reports about the risks and potential effects of oil spills.

“The consultation wasn’t, ‘Hey, we are thinking about putting this pipeline a half-mile upstream of your reservation. What do you think about it?’ ” Tsosie said. “It was, ‘We’re building this. Let us know if you have any sites around.’ ”

Without early tribal engagement in the consultation process, archaeological reviews may be incomplete because archaeologists’ and tribes’ perspectives about what’s historically significant might not match. Archaeologists define historic sites by the number of artifacts they find or by the integrity of a historic structure, but many tribes have traditions of leaving no trace in their most sacred places, making them unlikely spots for archaeological evidence.

“Even when you have well-intentioned project proponents and archaeologists, they may struggle to comprehend how water or a mountain can take on sacred properties to American Indians,” anthropologist Colwell said.

Archaeologists also face internal and external pressures to meet deadlines and keep a project under budget. The goal might become not thorough archaeology, but archaeology conducive to project completion. In the case of the Dakota Access Pipeline and the Willits Bypass, tribal officials said this may have led agency archaeologists to dramatically underestimate the so-called area of potential effects, where construction could damage cultural and sacred sites.

Cassandra Hensher, a state archaeologist and Karuk tribal member, said there are positive signs in the field, with more universities integrating ethnography and American Indian perspectives into the archaeology curriculum. The Society for American Archaeology, a national professional organization with more than 7,800 members, also issued a letter that was highly critical of the Army Corps’ handling of the Dakota Access Pipeline, confirming the archaeological review missed many cultural sites due to inadequate consultation.

A law without teeth

That letter largely echoed concerns expressed by the Advisory Council on Historic Preservation, the government body that oversees Section 106 reviews, issues regulations and provides guidance to agencies and the public. Yet the council has no policing power beyond issuing a scathing letter that could embarrass an agency into adhering to the law.

In its May 19, 2016, letter to the Army Corps, the council argued that the agency failed to coordinate a meaningful consultation with the Standing Rock Sioux and questioned the agency’s finding that no historic properties would be affected by the pipeline construction. The council also rejected the Corps’ decision to consider only historical sites at the 11 water crossings along the 1,100-mile pipeline corridor and said regulations require that effects of the entire pipeline be considered.

Yet both at the Willits Bypass in California and at Standing Rock, construction and the destruction of cultural sites continued, underscoring what many tribal officials say is the biggest shortcoming of Section 106: a lack of teeth.

“The idea is that the agencies will be responsible and that everyone will follow the rules,” said Tom King, a cultural resource management consultant and former advisory council member. “But it’s a silly idea. A lot of tribes end up having to provide the oversight themselves, and they’re operating from a position of incredible weakness.”

The state Office of Historic Preservation was even more terse in its letter about the Willits Bypass, arguing that Little Lake Valley was so rich with Pomo historical sites it may qualify as an “archaeological district” and agreeing that the village of Yami’s destruction should have been avoided.

Nearly 30 Pomo sites of historical significance were unearthed during the bypass construction, which continued unimpeded even though the tribes and Caltrans never signed a formal agreement outlining how to handle those newly disturbed sites. The next court date in the lawsuit over the bypass will be set after opening briefs are filed.

Tribal elder Hunter said she hopes the lawsuit will prevent Caltrans from employing the same methods of archaeological review with other tribes.

Opening the bypass

After the fog lifted over Willits, California, on the morning of Nov. 3, hundreds of people thronged onto the bypass, waving signs that read, “I love the Willits Bypass,” as a phalanx of antique cars glistened in the sun and California Highway Patrol aircraft flew overhead. Pomo tribal officials did not attend.

“It’s going to be a bypass that’s going to serve us for a long, long time. It will be good for businesses, and the people of Willits can have their Main Street back,” Democratic U.S. Rep. Mike Thompson said to a roaring crowd.

Yet there is no bringing back the Pomo sites destroyed during construction, sites that may have contained clues to bolster cultural revitalization that continues after nearly two centuries of government policies designed to erase their identities.

“Our tribe, we had to learn our songs all over again. We had to bring our dances back, our languages back,” Hunter said. “By taking them to court, documenting all the wrongs they have done, we’re letting them know they can’t do this and not expect us to fight back.”

This story was edited by Amy Pyle and copy edited by Nadia Wynter and Nikki Frick.

Marc Dadigan can be reached at marcdadigan@gmail.com.  

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