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Archive of Prominent Section 106 Cases:
June 2000


Criteria for

Hoover Dam Bypass

U.S. Courthouse
(San Diego)

Geothermal Developments
(Modoc & Klamath National Forests)

District of Columbia:
General Post Office

South Lawrence Trafficway

Industrial Canal Lock
(New Orleans)

Stillwater Lift Bridge

U.S. Courthouse

New York:
Hudson River Park
(New York City)

South Dakota:
Francis Case Reservoir

South Dakota:
Federal Lands along Missouri River

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South Dakota: Drawdown of Francis Case Reservoir

(Latest update)

Agency: Army Corps of Engineers

Criteria for Council Involvement:

  • The project was initiated without consultation under Section 106 and the Council's regulations or adherence to an existing Programmatic Agreement with the Army Corps of Engineers for management of the Missouri River Mainstem Reservoirs (Criteria 2 and 3).

  • The Yankton Sioux Tribe, which attaches religious and cultural importance to the White Swan Burial Grounds, requested that the Council become involved in consultation (Criterion 4).

Recent Developments

In March, the Council notified the Omaha District of the Army Corps of Engineers (Corps) that it would review the 1999 drawdown of the Francis Case Reservoir to determine if its opportunity to comment on the project under Section 106 had been foreclosed.

The Corps’ response summarized events that led to the exposure and eventual reburial of human remains from the White Swan Burial Grounds, but offered no explanation for the agency’s failure to initiate Section 106 review prior to the drawdown of the reservoir. Nevertheless, the Corps maintained that “any discussion of a foreclosure situation is premature.” The question of whether the Corps has foreclosed the Council’s opportunity to comment will be explored at the June meeting of the Council.


In late January, the Yankton Sioux Tribe requested Council assistance with a Corps drawdown of the Francis Case Reservoir on the Missouri River in southern South Dakota. The lowering of the water level, conducted to provide water storage capacity for scheduled upstream releases from two hydropower generating plants, had exposed about 30 human burials and prehistoric artifacts from the White Swan Burial Grounds.

Tribal representatives described a gruesome scene where pieces of caskets, the outlines of additional graves, and parts of human burials were exposed and lying on the surface of the drawdown zone. Associated with St. Phillips Church, part of a community that had been inundated by construction of the reservoir in about 1951, the burial grounds had been in use from at least the 1830s.

Following exposure of the remains, in December 1999, the tribe obtained a temporary restraining order to prevent the Corps from raising the water level and to provide the tribe and the Corps an opportunity to address the situation. When no resolution could be reached, however, the court ruled that the Corps could proceed to refill the reservoir.

Before this took place, the tribe and the Corps removed some of the exposed remains. Others were left in place due to frozen ground conditions. Soon afterward, the burial ground was inundated, and the human remains that had been collected were reburied in a nearby plot provided by the Corps.

The Corps already knew that human remains were present at this location and were vulnerable to exposure from drawdowns of the reservoir. Human remains were exposed during a drawdown in 1966, and exposed burials were also discovered in 1990 and 1991. The Corps intends to draw the reservoir down again in September 2000. Unfortunately, the Corps has not yet consulted with the tribe, the South Dakota State Historic Preservation Officer (SHPO), or the Council to plan for potential exposures during this and other future drawdowns.

Neither the Council nor the SHPO were consulted by the Corps about the 1999 drawdown and the subsequent discovery of the human remains. After the fact, the Corps acknowledged that the reservoir drawdown was an undertaking for purposes of Section 106 but notified the SHPO that the Corps had determined that the cemetery was not eligible for listing in the National Register of Historic Places. The Corps did not provide any supporting documentation or justification for this finding.

The SHPO replied that insufficient information had been provided to reach a consensus determination of eligibility and requested additional documentation. The SHPO also advised the Corps to seek a decision from the Council as to whether the Council’s opportunity to comment had been foreclosed. As of this writing, the Corps has not responded to the SHPO’s request for information.

A complicating factor in this case is a 1994 Programmatic Agreement (PA) that addresses Corps management of historic properties at all six of the Missouri River Mainstem Reservoirs (including Francis Case Reservoir) in Montana, North Dakota, South Dakota, and Nebraska. The Corps apparently has not met the terms of the PA.

In the six years that the PA has been in effect, no Remedial Action Plans have been produced for properties being damaged or in imminent danger of damage from reservoir operations, and none of the required Historic Properties Management Plans have been developed. The Corps has informed Council staff that it lacks sufficient staff or funding to carry out the PA’s terms.

Policy Highlights

This case underscores the difficulties that the Council, SHPOs, and tribes have in working effectively with the Omaha District of the Corps. Had the terms of the 1994 PA been fulfilled, this situation would have been averted through a management plan developed in consultation with the tribe, the SHPO, and the Council. Instead, the Corps did not follow the PA’s terms and the Council’s regulations. Corps actions at Francis Case Reservoir exemplify the unmitigated damage that continues at numerous significant historic properties due to the Corps management of impounded waters within the six Missouri River Mainstem Reservoirs.

Staff contact: Alan Stanfill

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