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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: Transfer of Federal Lands
Along the Missouri River

Agency: Army Corps of Engineers

Criteria for Council Involvement:

  • The transfer of Federal lands along the Missouri River out of Federal ownership has the potential to affect a large number of historic properties throughout the state of South Dakota (Criterion 1).

  • The transfer presents issues of concern to several Indian tribes–those that will receive land through the transfer and those that will not (Criterion 4).

Recent Developments

In Fiscal Year 2000, the Corps of Engineers (Corps) received specifically appropriated funds to initiate the boundary surveys and environmental analyses needed to accomplish the congressionally-mandated transfer of Federal property along the Missouri River to the State of South Dakota and the Lower Brule Sioux and Cheyenne River Sioux Tribes.

With funds now available, the Council anticipates that the Corps will be developing documentation that will facilitate consultation under Section 106 regarding the transfer’s potential effects on historic properties.


Title VI of Public Law 105-277 requires that the Corps transfer lands under its jurisdiction bordering the Missouri River in the State of South Dakota to the State and to the Lower Brule Sioux and Cheyenne River Sioux Tribes, which have reservations bordering the river. Approximately 90,000 acres will be transferred in this action.

This transfer constitutes an undertaking subject to Section 106 review, and the Council has been working with the Corps to ensure that historic properties will be fully considered in the transfer. There are over 1,500 known historic properties on lands to be transferred. These include archeological sites, buildings, and structures, as well as properties of traditional religious and cultural significance to both the tribes receiving land through the transfer and those that will not.

In April 1999, Council staff attended a meeting in Washington, DC, sponsored by the Corps and Senator Tom Daschle (D-SD) regarding implementation of the transfer. At this meeting, the Corps stated that its legal and environmental responsibilities would require approximately two years to complete. Based on the discussion of issues during the meeting, cultural resource issues will play a prominent role in the transfer and in post transfer management of the land. In June 1999, Council staff attended a second meeting held in Pierre, South Dakota.

The Corps is also partnering with several other Federal agencies to ensure a smooth transfer of the land. The General Services Administration is providing guidance regarding transfer of the property out of Federal ownership, and the U.S. Geological Survey is helping to address issues of land boundaries and water flows. The Bureau of Indian Affairs will hold the lands in trust for the tribes. The Fish and Wildlife Service is also involved in addressing wildlife restoration issues.

Policy Highlights

The potential adverse effects of transferring historic properties out of Federal ownership can be often addressed relatively easily through protective covenants. Covenants will undoubtedly be considered in this case, but the situation is complicated by the volume and type of historic properties that will be affected. For instance, the consulting parties will need to consider whether identification of historic properties must be completed before the transfer or whether broad covenants could be crafted to ensure future identification as well as protection of properties.

Another important issue most likely will be how to ensure effective protection for properties of religious and cultural significance to tribes which the State will now own. Protections offered by Federal statutes, such as the Native American Graves Protection and Repatriation Act and the Archeological Resources Protection Act, will no longer apply once the property passes from Federal to State ownership.

Staff contact: Tom McCulloch

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