The document summarizes concerns about a proposed sewer system project in Afton, Minnesota that could impact a historically significant rattlesnake effigy mound. The Ho-Chunk Nation believes the mound has cultural/religious significance. The Nation objected to the project under Section 106 of the NHPA, which requires consultation with tribes regarding impacts to historically/culturally important sites. While the MPCA determined the project would have no adverse effects, other groups disagree and more evaluation is needed. The document analyzes whether the Nation could seek an injunction against the project based on its NHPA rights and the project's federal funding sources.

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Memo Regarding: Rattlesnake Effigy Mound, Afton, Minnesota
Date: September 7th
, 2016
By: Attorney G. Garvin
Background
On December 30, 2015, a flyer titled “Urgent” was circulated by the Citizens for Valley Creek
(“CVC”), a grass-roots community organization aimed towards the prevention of a sewer
wastewater system that would potentially impact several historical sites in, and around, the city
of Afton Minnesota, most importantly, a rattlesnake effigy mound located in the outer-
parameters of the city. The flier stated there was less than 72-hours for any Indian Tribe to send a
comment to Corey Mathisen, at Corey.Mathisen@state.mn.us, requesting a Section 106 review
under the National Historical Preservation Act, (“NHPA”). Invoking Section 106 allows tribes to
act as consultants regarding sites of cultural/historical significance that may be effected by
proposed federal projects or undertakings.
According to the CVC, the city of Afton planned on building a sewer system that would drill
directly into the head of the rattlesnake mound. On December 31st
, 2015, Representative Robert
TwoBears sent a letter to Mr. Mathisen via e-mail, requesting that all construction efforts halt
until a review had been conducted under Section 106. See attached letter. Accordingly, on May
20th
, 2016, the Minnesota Pollution and Control Agency, (“MPCA”), the primary agency
responsible for administrating the project, met with several tribal representatives in the
Minnesota area. During this consultation, tribal representatives expressed their concerns
regarding bones found on-site of the rattlesnake mound. The MPCA assured the tribal
representatives that a follow-up study would be conducted to determine if the bones were of
human origin. According to the CVC, this study was never conducted.
On June 6, 2016, the Minnesota Historical Society sent a letter to the MPCA regarding its
continued consultation on the above project. The letter noted that the rattlesnake mound was
eligible for listing under the National Registrar of Historic Places, and that there was a lack of
boundary delineation, as well as incomplete evaluation work regarding the historical
archeological component of the rattlesnake mound. Moreover, the Minnesota Historical society
directly stated that the MPCA failed to give sufficient documentation for concurrence with the
MPCA’s original stance of a “no effect determination” regarding this site. See attached letter, p.
2.
In August of 2016, Jim Golden, the head organizer of CVC, contacted Rep. TwoBears,
requesting that a second letter to be sent to the MPCA, specifically contesting their findings by
urging them that the project could not move forward, as it would irreparably damage the
historical integrity of the rattlesnake mound, and consequently lower its eligibility to be placed
on the National Registrar of Historical Sites. On August 31st
, 2016, Rep. TwoBears sent a second
letter to the MPCA, echoing the above sentiments, while objecting to the continuation of the
project until the promised study was conducted to rebut any existence of human remains on-site
of the rattlesnake effigy mound. See attached letter.

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On September 1, 2016, Mr. Mathisen contacted both Rep. TwoBears and myself, via e-mail,
requesting to talk. I promptly e-mailed back, suggesting a date after the 7th
.To-date, I have
received no response.
Legal Analysis
Under the NHPA, the Nation is entitled to be a consultant regarding the religious and cultural
importance of the rattlesnake effigy mound. Section 106 of the NHPA provides that planners of a
federally supported project must take into account any area eligible for inclusion in the National
Registrar of Historic Places, and also that planners shall consult with any Indian Tribe that
attaches religious and cultural importance to an eligible affected area. Further, in order to qualify
as a federally supported project, an entity or project must receive federal funds, or be engaged in
federally assisted undertakings. (Federal licenses and permits do not qualify.)
In a similar case, involving the Narragansett Tribe of Rhode Island, the Tribe appealed an order
denying a preliminary injunction against a local sewer company, whose construction plans risked
the desecration of Narragansett tribal ancestral burial sites (effigy mounds). The Tribe lost on
appeal because the sewer authority dutifully followed the consultation requirements under
Section 106, and the tribe failed to timely object to the sewer company’s proposed findings that
the project would not affect any historically significant artifacts or properties. Thus, the tribe was
denied any sort of injunctive relief. See Narragansett Indian Tribe v. Warwick Sewer Auth., 334
F.3d 161, 167 (1st Cir. 2003).
Here, the Afton project is eligible for federal funding from the PFA through The Clean Water
State Revolving Fund (a revolving loan program containing a mix of federal funds, state funds,
and loan repayments) and The Point Source Implementation Grant Program (a state grant
program funded from The Clean Water Legacy funds). The project has applied for both grants
and is awaiting the award of monies. Further, George Garvin from Cultural Resources can verify
that there is historical background that implicates the Ho-Chunk Nation places cultural/religious
significance on the rattlesnake mound, and therefore justifies the Nation’s interest in protecting
the mound. Moreover, the Nation’s objection to the MPCA’s findings, that the proposed project
would have no adverse effect on the rattlesnake mound, was timely and proper under the
regulations of the NHPA, per Rep. TwoBears’ August 31st
, 2016 letter. Thus, the Nation has
appropriate standing under the NHPA to continue their objection to the proposed project.
Due to the timeliness of the objection, and because the Nation’s position is align with the
Minnesota Historical Society’s recommendation, that further evaluation is needed to formulate a
viable “ no effect determination” regarding the proposed construction, it is possible that the
Nation could prevail on some sort of injunctive relief under the NHPA. Depending on whether
human remains are found on-site of the rattlesnake mound, the Native American Graves
Protection and Repatriation Act (“NAGPRA”) could be also be triggered. (Note that only shovel-
tests have been conducted on the mound to determine if there are any human remains, or funnery
objects in the soil.)