Home Working with Section 106 Section 106 in Action Archive of Prominent Section 106 Cases South Dakota, North Dakota, Montana, and Nebraska: Missouri River, Master Manual, and Title VI Land Transfer

Agency: Army Corps of Engineers

Criteria for ACHP Involvement:

• Erosion, vandalism, and recreational development from the operation of the Missouri River Mainstem Reservoir System threaten a large array 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 (Criterion 1).

• Consideration of historic properties in the ongoing operation of the reservoir system and in a legislatively mandated transfer of part of the land to the State of South Dakota presents important questions of policy and interpretation of ACHP’s regulations (Criterion 2).

• There is substantial public concern about the effects of the land transfer and the Corps’ operation of the reservoir system on historic properties (Criterion 3).

• Many Indian tribes, some with reservation lands adjacent to the Missouri River, have expressed concerns about the effects of the Corps’ management of the Missouri River Mainstem Reservoir System on historic properties and the transfer of historic properties out of Federal ownership (Criterion 4).

Transfer of Missouri River lands from the Army Corps of Engineers to the State of South Dakota under Title VI of the Water Resources Development Act of 1999 has been temporarily stayed until a court hearing February 8, 2002, because of a suit brought by the Crow Creek Sioux Tribe against the Corps.

Among other issues, the tribe questions the constitutionality of Section 605 of Title VI. This section establishes the applicability of three Federal historic preservation laws—the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act (NAGPRA), and the Archeological Resources Protection Act—to Title VI lands to be owned by the State after the transfer. At the hearing, the judge will consider the tribe’s request for a permanent injunction.

In addition, the Oglala Sioux Tribe has filed a separate lawsuit against the Corps, arguing that burial sites and human remains contained in them should not be transferred to the State or the Lower Brule and Cheyenne River Sioux Tribes because they belong to the Oglala Sioux Tribe according to the 1868 Treaty of Laramie and NAGPRA.

The Oglala Sioux also recently asked ACHP to review the Corps’ determination of effect under Section 106 for the Title VI transfer and to reconsider transfer conditions recommended by ACHP. The tribe argues that the 11th Amendment to the Constitution will render the State immune from legal challenge regarding its implementation of any Programmatic Agreement (PA) that might result from Section 106 consultation. A subsequent letter from the National Trust for Historic Preservation also raised this issue.

Meanwhile, the Corps has committed to consult on a new PA regarding the effects to historic properties of the overall operations of the Missouri River Mainstem Reservoir System. Consultation will take place as part of the Corps’ review and update of the Missouri River Master Manual. ACHP is reviewing the Revised Draft Environmental Impact Statement for the Master Manual effort and will develop comments to the Corps in coordination with ACHP’s Missouri River Task Force.

ACHP’s review will consider a recent National Academy of Sciences report on the Missouri River that was sponsored by the Corps and the Environmental Protection Agency. (For more information on the Master Manual, visit www.nwd_mr.usace.army.mil/mmanual/mast_man.htm.)

Despite progress toward addressing overall management of the reservoir system, problems continue at the Frances Case Reservoir. The Corps is in the process of or has completed drawing down the reservoir, again exposing human remains associated with the White Swan Cemetery. The Corps still has not evaluated the eligibility of the cemetery for the National Register of Historic Places, so the circumstances appear to remain the same as those that led ACHP in June 2000 to determine that the Corps had foreclosed ACHP’s opportunity to comment on a previous drawdown.

Background

The Omaha District of the Corps 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 Tribes, Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Lower Brule Sioux Tribe, Yankton Sioux Tribe, and Fort Peck Tribes. In 1999, Congress mandated in Title VI of the Water Resources Development Act that 91,500 acres of the reservoir land in South Dakota be transferred by the Corps to the State of South Dakota Department of Game, Fish, and Parks.

Widespread erosion from the Corps’ operation of the reservoirs, 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.

Hundreds of these historic properties in South Dakota would be transferred out of Federal ownership under the Title VI transfer; however, the law mandates that Federal historic preservation laws will still apply to the properties after transfer.

In 1993, a PA was executed to address how the Corps would manage historic properties during operation of the reservoir system. However, in June 2000, ACHP determined that the Omaha District foreclosed ACHP’s opportunity to comment on its drawdown of water levels adversely affecting the White Swan Cemetery on Francis Case Reservoir in South Dakota.

In the wake of this finding, ACHP also terminated the 1993 PA given the Corps’ failure to carry out its terms, resulting in the Corps’ need to comply with Section 106 on an undertaking-specific basis.

In the last year, concerns by Indian tribes and the National Trust for Historic Preservation have increased, and there have been lawsuits against the Corps by Indian tribes on historic preservation issues. Because of this, in July 2001 ACHP members established a Missouri River Task Force to highlight and guide ACHP’s consideration of the Corps actions on the Missouri River.

Policy Highlights

The Omaha District’s operations of the Missouri River properties raises many issues regarding how to manage a rich, large collection of historic 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 Nowick

Updated May 6, 2003

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