Home Working 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

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 ACHP’s regulations (Criterion 2).

• 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 4).

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 District’s 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 District’s 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 ACHP’s 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 basis.

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 ACHP’s consideration of the Corps actions on the Missouri River.

The Omaha District’s 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 Nowick

Updated June 6, 2002

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