general nav links
Federal, State, & Tribal Programs
Training & Education
specific nav links
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
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 ACHPís regulations (Criterion 2).
- There is substantial public concern about the effects of the land
transfer and the Corpsí 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 Corpsí
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
Among other issues, the tribe questions the constitutionality of Section
605 of Title VI. This section establishes the applicability of three Federal
historic preservation lawsthe National Historic Preservation Act,
the Native American Graves Protection and Repatriation Act (NAGPRA), and
the Archeological Resources Protection Actto Title VI lands to be
owned by the State after the transfer. At the hearing, the judge will
consider the tribes 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 ACHPs Missouri River Task Force.
ACHPs 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
ACHPs opportunity to comment on a previous drawdown.
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,
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 ACHPs 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 ACHPs consideration of the Corps actions
on the Missouri River.
The Omaha Districts 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
Staff contact: Margie
May 6, 2003
Return to Top