A marker designating the historic Kituwah site near Bryson City and 11 miles from
Cherokee, N.C. (File photo)

By Will ChavezStaff Writer TAHLEQUAH, Okla. – In a response to the North Carolina Utilities Commission, Duke Energy in April committed to halting construction of an electric substation near the historic Kituwah site except for erosion control on land already cleared.The commitment came before an April 27 NCUC hearing that was scheduled to consider granting an injunction to stop the construction of the substation near the “Mother Town” of the Cherokee people. The group Citizens to Protect Kituwah Valley filed a complaint with the commission on March 31 to stop construction. The NCUC then gave Duke Energy until April 16 to respond to the complaint.The complaint states the substation’s visual and physical encroachment “is a desecration of the sacred Kituwah Valley,” which is considered by the Cherokee tribes as a “spiritual and cultural center,” and Duke did not get the proper permits before starting the $52 million project.In its response, Duke stated the substation project is a transmission line upgrade and is exempt from public permits. However, the company agreed to halt construction and work with the Eastern Band of Cherokee Indians and Swain County officials on a solution. The citizens group, led by Cherokee, N.C., resident Natalie Smith, confirmed on April 23 that Duke “has committed to engage in settlement discussions with the group and others.”Duke Energy began clearing nearly 40 acres for the station south of the historic Kituwah site in 2009 and was met with protests from Cherokee people and all three Cherokee tribal governments. In March, Duke stopped work at the site because of a 90-day moratorium issued by Swain County commissioners. Duke Energy spokesman Jason Walls, in a written statement, reiterated the company’s willingness to work with tribal leaders to resolve the issue. He said Duke is considering alternative sites suggested by the EBCI for the station. At an April 16 joint council between the EBCI and Cherokee Nation, EBCI Tribal Historic Preservation Officer Russell Townsend confirmed the EBCI is in discussions with Duke to place the station at one of two alternate sites away from Kituwah. He said Swain County officials have also offered a location in an industrial park. Townsend said his office learned of the project in late 2009, but could not stop it because it was not a federal project.“When we discovered this early in December, we very quickly went about trying to ascertain if in fact it was a federal undertaking that Duke had not consulted us on,” he said. “If it was a federal undertaking, Duke Energy would have been forced to consult with the tribe before building.” Townsend’s office also checked with the Federal Energy Regulatory Commission and learned the only utility lines it oversees are those directly connected to a power-generating facility. Because Duke is building a substation, or tie-in station, to bring in electricity from a generator and release it, the FERC does not regulate it. Townsend said he also looked at Army Corps of Engineer permits because 37 acres were being cleared for the station near the Tuckasegee River. He said his office thought Duke might have filed a permit with the corps. However, Duke was not required to obtain a corps permit.“At that point and time we found out this was fully in the state’s purview to regulate. It’s really an issue for the state utilities commission,” Townsend said. He said his preservation office has never studied the area where Duke has cleared land for the station because it’s private property. But there are 15 archeological sites within a mile of the Duke property, he said.Townsend said the EBCI has spoken with Duke’s archeologist, who told them there is a “moderate-to-high probability” that there is something (artifacts) there. He said the archeologist performed an archeological survey of the land at 30-meter intervals before it was cleared. “It’s a little wider than we would have been comfortable with, but nobody asked us,” Townsend said. “Nevertheless, they didn’t find anything and this was a professional archeological firm that did the study for them in 2008.”He said the archeologist dug to sterile subsoil, which is clay or sand where there are no artifacts, and sifted the dirt for artifacts and remains before reaching the subsoil. “They had no positives in the 30 acres or so they surveyed up there. My feeling is it’s not as likely, based on that report, that there was something up there, but I have real concerns that it wasn’t a thorough enough survey from our point of view,” Townsend said. “We’ve missed our opportunity to see anything because they’ve basically knocked 40 feet off of the top of that hill. So, we will never know in fact what was there.”Reach Staff Writer Will Chavez at (918) 207-3961 or will-chavez@cherokee.org