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with Section 106 Section
106 in Action Archive
of Prominent Section 106 Cases South Dakota, North Dakota, Nebraska,
Montana: Missouri River, Master Manual, and Title VI Land Transfer
North Dakota, Nebraska, and Montana: Missouri River, Master Manual, and
Title VI Land Transfer
Agency: Army Corps of Engineers
Criteria for ACHP Involvement:
- Erosion, vandalism, and recreational development threaten thousands
of historic properties, including sites visited by Lewis and Clark,
prehistoric fortified village sites, and historic cemeteries and burial
mounds with hundreds of human graves. In addition, hundreds of historic
properties in South Dakota would lose their protection under Federal
historic preservation law because of a legislatively mandated land
transfer (Criterion 1).
- Consideration of historic properties in the ongoing operation
of the Missouri River Mainstem System and in the legislatively mandated
transfer of approximately 91,500 acres of Missouri River lands in
South Dakota to the State Department of Game, Fish, and Parks (known
as the Title VI land transfer) present important questions of policy
and interpretation of ACHPs regulations (Criterion
- There is tremendous public concern about the effects of the Title
VI land transfer and the Corps operation of the Missouri River
Mainstem System on historic properties (Criterion 3).
- Many Indian tribes, some with reservation lands within and adjacent
to the Missouri River, have expressed concerns about the effects of
the Corps management of the Missouri River Mainstem System on
historic properties and on the Title VI transfer of historic properties
out of Federal ownership. The Title VI land transfer raises additional
challenges for Indian tribes because of the connections among the
Section 106 process and other Federal historic preservation laws such
as the Native American Graves Protection and Repatriation Act (Criterion
On September 24, 2001, ACHP staff and Army Corps of Engineers staff
from Omaha, Nebraska, Portland, Oregon, and Washington, DC, met to discuss
ways to improve the Omaha Districts compliance with Section 106
regarding its operation of the Missouri River Mainstem System. A focus
of the meeting was how the Corps will comply with Section 106 for the
legislatively mandated Title VI land transfer, in which the Corps will
transfer 91,500 acres of Missouri River land in South Dakota to the State
of South Dakota Department of Game, Fish, and Parks.
The Corps committed to taking immediate steps to comply with Section
106. It plans to hold a consultation meeting for Indian tribes and other
consulting parties to express their concerns about the Title VI land transfers
and how historic preservation issues should be addressed in the future
management of the transferred lands through a Programmatic Agreement (PA).
The Corps indicated that it is investigating how it could remain involved
in the transferred lands for historic preservation purposes, and that
it is developing a draft agreement with the State of South Dakota. These
and other ideas would be examined during the PA discussions.
Also discussed was the Omaha Districts lack of compliance with
the 1993 PA with ACHP and State Historic Preservation Officers
(SHPOs) of Montana, North Dakota, South Dakota, and Nebraska regarding
its operation of the Missouri River Mainstem System.
The Corps reiterated its desire for a new PA for its current review and
update of its Missouri River Master Manual. The need to involve a larger
groups of stakeholders both in the development of a new PA and in the
ongoing management of the Corps Missouri River lands were emphasized.
The Corps committed to looking into its legal authorities to partner with
other entities and to working closely with ACHP staff to comply with
Section 106 to address the effects of its Missouri River operations and
Master Manual update on historic properties.
The Omaha District of the Army Corps of Engineers operates six multifunctional
dam and reservoir projects along the main stem of the Missouri River in
Montana, North Dakota, South Dakota, and Nebraska. The six projects are
operated as a system, providing hydroelectric power, flood control, water
supply, and recreation. Collectively, the six reservoirs have about 6,000
miles of shoreline and are adjacent to or within the exterior boundaries
of several Indian reservations, including the Three Affiliated Tribe,
Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Lower Brule Sioux
Tribe, Yankton Sioux Tribe, and Fort Peck.
Widespread erosion from the Corps operation of the Mainstem System,
recreation development, vandalism, and other factors have threatened many
of the 6,000 historic properties documented on Corps lands. Historic properties
include intact prehistoric sites such as fortified village sites, campsites,
prehistoric and historic cemeteries and burial mounds with hundreds of
human graves, historic fort and battle sites, sites visited by Lewis and
Clark and other early explorers, and many sites of religious and cultural
significance to Indian tribes. Involved Indian tribes, SHPOs, and the
National Trust for Historic Preservation have all expressed concern about
the threats to historic properties and the Corps lack of action.
In June 2000, ACHP determined that the Omaha District foreclosed
ACHPs opportunity to comment on its drawdown of water levels
adversely affecting the White Swan cemetery on Francis Case Reservoir
in South Dakota. Also, ACHP terminated the 1993 Missouri River
Mainstem System PA for the Corps failure to carry out its terms,
resulting in the Corps need to comply with Section 106 on an undertaking-specific
In the last year, concerns by Indian tribes and the National Trust have
increased, and there have been at least two lawsuits against the Corps
by Indian tribes on historic preservation grounds. Because of this, in
July 2001 ACHP members established a Missouri River Task Force
to highlight and guide ACHPs consideration of the Corps actions
on the Missouri River.
The Omaha Districts operations of the Missouri properties that
are archeologically significant and of religious and cultural importance
to many Indian tribes but that are threatened by devastating erosion.
Title VI highlights the array of problems the Federal Government faces
in meeting its stewardship and statutory responsibilities when plans call
for conveyance of large tracts of land out of Federal ownership.
Staff contact: Margie
June 6, 2002
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