DAPL is the biggest issue in Public Archaeology right now

Water Protectors in North Dakota on September 8th, 2016. Click on the photo to go to full story by Corey Robinson at National Geographic. Photo by Corey Robinson.

Water Protectors in North Dakota on September 8th, 2016. Click on the photo to go coverage of the events by Corey Robinson at National Geographic. Photo by Corey Robinson.

Howdy! I had planned out a nice narrative arc for this month’s blog post, but the rapidly evolving situation in North Dakota has encouraged me to throw some of those plans out the window. In this post I explain the string of legislation that has led to the showdown in North Dakota, and explore some of the implications for public archaeology.

*Edit: while I was writing this, the Department of the Interior, the Army Corps of Engineers, and the Department of Justice issued a joint statement effectively halting construction of DAPL within 20 miles of Lake Oahe. You can read it here. It very intriguingly insinuates that the government may revisit its process for tribal consultation.*

The Dakota Access Pipeline (DAPL for short) is without a doubt the biggest issue in Public Archaeology right now. “But, why is this a *public* archaeology issue?” you may ask. “Doesn’t most of the pipeline route run through private land?” Well, the answer lies not only in the complicated legal framework of the National Historic Preservation Act (NHPA) of 1966, but also in Section 10 of the Rivers and Harbors Appropriation Act of 1899.

These documents are laden with jargon and legalese, but I’ll try to break them down. For the faint of heart, I’ve included  a TL;DR (too long; didn’t read!) section below, and you can just jump to that. For the brave, I’ll start with the Rivers and Harbors act.

Step 1: the Rivers and Harbors Appropriation Act and the Pick-Sloan Plan

This act gave the Secretary of War the power to regulate basically any kind of construction or alteration that might affect the navigability of water-ways within the territory of the United States. This includes shorelines and coastal harbors, but also rivers that facilitated interstate and foreign commerce. Now, defining “navigability” could be tricky, but in the case of the Missouri River, with a history of steamboat traffic throughout the 19th century, I think there is little doubt. The 1972 amendments to the Federal Water Pollution Control Act of 1948, more commonly known as “The Clean Water Act” gave further power over waterways to the Department of the Army regulatory program.

In addition, the Oahe Dam was authorized in 1944 as part of the “Pick-Sloan Plan” to control the waters of the Missouri River Basin, and the U.S. Army Corps of Engineers completed construction in 1962. An entire book could be written about the forced displacement of Native Americans from traditional farming locations along the Missouri River floodplain for this project, and indeed one has. Incidentally, the damming of the Missouri River in the 1945-1965 period also played a huge role in the development of public archaeology. The Bureau of American Ethnology’s federally-funded “River Basin Survey Program” undertook a massive survey and excavation project in the area to be destroyed by flooding; this salvage archaeology project and others were precursors to “cultural resource management” as we are familiar with it today.

At any rate, Energy Transfer Crude Oil Company, LLC is required to get a permit from the Army Corps of Engineers because the DAPL will cross (or rather, go under) a navigable water way of the United States, and because the Army Corps of Engineers controls and manages Lake Oahe and Oahe Dam.

Step 2: The National Historic Preservation Act

Okay, so the Army Corps of Engineers has jurisdiction over constructions that will affect navigable waterways of the United States. So why are cultural resources an issue? Does the energy company just do archaeology out of the goodness of their hearts?

No. Though I have once or twice witnessed an energy company pay for archaeology as a goodwill gesture, it is Section 106 of the National Historic Preservation Act (NHPA) that requires consideration of archaeology. The NHPA is a fairly remarkable act that would NEVER get through Congress in today’s legislative climate; all the more reason to fight like hell to preserve its legal integrity (click here for the Society for American Archaeology’s list of current legislative issues).

Section 106 of the NHPA states:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.

What the #%&* does that mean??!! Well, it means that before a Federal agency issues a permit, they have to “take into account” the effect of the project on “historic properties.” And it means that an entity known as “The Advisory Council on Historic Preservation” has a chance to comment on whether that agency has done its due diligence.

The phrase “taking into account” is, almost on its own, responsible for the entire cultural resources management industry. “Taking into account” means you have to know a little something about the place that you are about to put a pipeline through. Most typically this occurs through archaeological survey, excavation, and report writing, but Section 106 ALSO directs federal agencies to “consult” with Native tribes that may attach “religious and cultural significance” to the properties that will be affected. Archaeology is easy; consultation is hard. And this appears to be where the Army Corps of Engineers screwed up and why there are thousands of Native American (and other) “Water Protectors” camped out near the Standing Rock Sioux Reservation.

Step 3: Consultation and the Advisory Council’s Stance on DAPL

The ACHP is made up of the heads of several federal agencies, but the key members are appointed by the president (this is why it’s important to VOTE). The ACHP’s May 19th, 2016 comments on the Army Corps of Engineers’ “effects determination” has been circulating around the web lately, so I thought I should comment on them as they are playing an important role in the current protests. The comments are a relatively arcane document stemming from that passage in Section 106 I described above. You can read the full comments yourself HERE.

That’s a lot of legalese. Let me break it down. The ACHP appears to be taking issue with two aspects of the Army Corps handling of the project. First, they are concerned with how Army Corps defined the “project area.”

“Undertaking and Area of Potential Effects”

DAPL is a really long pipeline. There are at least seven places where it crosses navigable waterways, and at least 209 where the Clean Water Act says the Army Corps should be involved. Apparently, the Army Corps is considering EACH ONE OF THESE as a separate “undertaking.” This means that when the Army Corps is “taking into account” the effect of the project, they do it separately over two hundred times, and each of those is a relatively small instance that has no bearing on any of the others. It’s like eating a bag of Doritos, (minus the orange powder)–each time you reach into the bag, you only take out one or two chips. But since you’re not looking inside the bag each time, before you know it you ate the whole damn thing and there’s nothing left.

The Army Corps is making no consideration of what are known as cumulative effects. It’s a lot easier to say “only one historic property will be affected” two hundred times, in separate reports, at separate times, than it is to say “hundreds of historic properties will be affected” once. This is a common tactic used to make the impact of a big project seem a lot smaller than it actually is. It’s also dishonest and a big, fat, inefficient waste of tax-payer money….but I digress.

As a result, ACHP says that the Army Corps has incorrectly defined the “Area of Potential Effect” or APE. The APE describes the constellation of things that will potentially be messed up by the project. The ACHP is pointing out that the Army Corps has been considering the APE to only include the places where the DAPL crosses a waterway. However, Section 106 tells them that although their jurisdiction happens to fall on those 200+ water crossings they are supposed to consider the total impact of the entire pipeline project. Apparently, the Army Corps is coming to that realization fairly late in the process–and in piecemeal fashion–and this has contributed to some major problems in communication between different parties that will be affected by the DAPL.

“Tribal Consultation and Inadequate Identification Effort”

Second, the ACHP thinks the Army Corps did a poor job communicating with tribes and as a result failed to fully identity the important places that the pipeline could destroy. According to the ACHP, the Army Corps has obfuscated meaningful consultation with federally-recognized tribes by considering each water-crossing a separate undertaking. By incorrectly defining the APE, they failed to provide the tribes with information on all the areas that would be affected by construction. The ACHP also indicates that the Army Corps did a poor job coordinating their efforts with other federal agencies involved in the project, further complicating communication.

In addition, the Army Corps seem to have limited most of their consideration to archaeological sites identified through pedestrian survey. The ACHP took the Army Corps to task for considering archaeological sites to be important only for their information potential to science (the “Criterion D” mentioned in the ACHP comments); many Native American archaeological sites may also be important for their relationship to important personages in history (this can include so-called “mythic histories”) or for their relationship to broad themes in tribal history (such as migration narratives or origin stories).

As a consequence, tribes were unable to identify sites of “religious and cultural significance” within major sections of the DAPL route. The confluence of the Cannonball and Missouri Rivers is one of these places, and this is the reason why so many people have converged on this spot in protest.

TL;DR

The Army Corps of Engineers is required by federal law to consider the effect that the ENTIRE Dakota Access Pipeline will have on historic properties. That included talking to nearby Native American tribes that might know the location of cultural or religiously significant places that the pipeline would destroy. Apparently, the Army Corps didn’t do this before they started issuing permits. Back in May 2016, the Advisory Council for Historic Preservation took them to task for not including enough of the pipeline in their plans, and for not communicating well with Native Americans. The Army Corps dug in their heels and continued to allow pipeline construction. Look where that got them!

Why is this important for Public Archaeology?

First off, I bet you didn’t realize that every crossing of a navigable waterway is potentially a place where public archaeology might occur. Because of the federal regulatory system, public archaeology *could* be found practically anywhere. I, for one, see this as a good thing. Most other so-called “developed nations” have cultural heritage laws that protect archaeological sites and sacred places, whether they are on private property or not. Public archaeology can help bridge the gap between the “public” and “private” spheres that are defined so strongly in the U.S.

Second, major projects have major effects. Massive construction efforts like the DAPL significantly impact surrounding communities. In the U.S. west, these impacts fall disproportionately on indigenous communities. Furthermore, I think that it is only right that major federally-licencsed projects affecting water or contributing to the use of fossil fuels be the focus of significant public debate, as the use and abuse of these resources will define our collective futures. And when the federal government and developers attempt to mask the true impact by defining project areas in dishonest ways, they are abrogating their responsibility to listen to the concerns of affected constituents. Public archaeologists must remind them of that responsibility.

Third, contract archaeologists are often caught between developers and local communities. Out west, many of these communities are indigenous. Though contract archaeologists are NOT the appropriate people to initiation consultation with tribal groups (that’s the lead federal agency’s job), they will undoubtedly be pulled into the broader conversation. Occasionally they have to remind the government of its responsibility to adequately consult (I have heard through the grape-vine that this was the case with DAPL, but to no avail). Public archaeologists have to navigate these tricky shoals on a daily basis.

Finally, the showdown at Standing Rock highlights how public archaeology will increasingly include environmental justice. The issue is not just the affronts to cultural heritage posed by the pipeline, but the potential risks to (sacred) resources like water: the font of life itself. The distinction between culture and nature grows blurry. Is water a “cultural resource” as seems to be suggested by the tone of the Water Protectors? If so, what does this mean for archaeology?

48 Comments

  • Gary Brown says:

    Kellam, thanks for a nice, concise summary of a complicated situation!

  • Nerissa Russell says:

    Are the DAPL builders criminally liable for deliberate destruction of archaeological sites, as happened last weekend?

    • kellamthrogmorton says:

      Nerissa,

      I’m unsure what their ultimate liability may be. It is not illegal to bulldoze archaeological sites on private land, though depending on North Dakota state law it may be illegal to disturb human burials without a permit regardless of land status (it appears that ND DOES have some protections for unmarked graves). I suspect that a lot of the future legal wrangling may hinge on other issues, such as the timing of the injunction and the underlying adequacy of the consultation process.

    • connie Toney says:

      Under North Dakota law they are criminally liable, but no warrants have as yet been issued in regards to their criminal actions.

  • H O'Connell says:

    Who knew archaeologists’ devotion to the past could bring such key information to our decision making, pivotal for determining our – Earth’s – future. What a confluence!

  • Marsha Dobson says:

    Thank you for this excellent article.

  • Dan W Martin says:

    Great synopsis, thanks

  • Bridget says:

    This is an excellent read; thanks, Kellam!

  • DL Bliss says:

    Thank you for the concise commentary on heinous practices regarding cultural and environmental integrity.

  • Dr. Matthew J. Root says:

    I am still uncertain whether the entire pipeline and all access routes, staging areas, and compressor station areas were surveyed or not. In the early 1980s, I co-directed the archaeological survey and subsequent archaeological excavations along the North Dakota portion of the Northern Border Pipeline, which runs nears the DAPL. We surveyed 100 percent of the pipeline route. We recorded hundreds of archaeological sites, including human burials. Hundreds of sites are certainly present in the DAPL project area as well.

    • CRM professional says:

      And yet Northern Border was constructed…right next to DAPL (maybe even sharing a disturbance corridor). Somehow that was possible… Of course, we all know it is possible. Reroutes and avoidance plans and mitigation make it possible. The full story will eventually come out.

      ACOE doesn’t require 100% inventory due to their definition of APE. But the ND PSC requires it, and requires that the SHPO is satisfied. This is not true in most states, but it is in ND. Archaeological survey occurred.

    • Dustin Thompson says:

      Do you still have access to this report? I would love to go over it as I am so close to this issue. Please, if you can send it to me, let me know.

    • Kellam says:

      My impression, and this is only based on reading the public statements from ACHP and from the SAA, and other sources, is that only the areas within the Army Corps APE were systematically surveyed recently. If someone was actually on that project, feel free to correct me. As you point out, that doesn’t mean that major portions of the pipeline route have not been surveyed in the past. However, I see two issues. Survey standards have changed over the past 30 years (not to say that people necessarily did BAD work in the past, but that the site forms and survey regulations themselves have changed and the definition of what counts as an eligible site have also been a moving target). Second, and the recent Society for American Archaeology statement highlights this, some of the features in question may not have been obvious as “cultural features” to people without special knowledge, i.e. tribal members. So the issue hinges on identifying project APEs broadly and in a timely fashion so that proper consultation can occur.

      • CRM professional says:

        Pipeline in ND require a permit to carry gas and the PSC in ND requires that the SHPO be satisfied with identification efforts. Most, if not all, of DAPL was inventoried for cultural resources by an archeologist (permitted archaeologists can get that, otherwise it is not public). This doesn’t change any facts about the success or failure of Corps APE definitions or tribal consultation, but archaeology is as complete as on any other project throughout the west. As it pertains to the ability of an archaeologist to identify TCPs…I have minimal to add, but every archaeologist should consider what it means to say that an archaeologist has failed to do their job because they are not native. I have always assumed that there are (at least) two pieces to the identification puzzle, one through archaeology and one through tribes. The public outcry on this project has enlivened many peoples passions, but few (including SAA and AAA) have all the facts. I am strangely happy that the public is concerned about the past again, I just fear the aftermath when the courts are done and one side “loses”. If we aren’t careful with what the Facebook facts we chose to believe and cling to, I fear both sides will lose in some way.

      • kellamthrogmorton says:

        I agree that we need to “consider what it means to say that an archaeologist has failed to do their job because they are not native.” To me it highlights the fact that on many projects archaeologists are only providing one portion of the information that is necessary to make decisions about cultural resources, and confusion over their role can lead to big problems (like that in ND). It does make me wonder whether “Public Archaeology” in the future needs to be more broadly anthropological.

  • Diane Curewitz says:

    Thank you for this. It clears up some questions I had and that I could not adequately answer for non-archaeologists.

  • Deborah Baer says:

    So helpful. Thanks, Kellam!

  • Willian says:

    Sweet blog! I found it while surfing around on Yahoo News.
    Do you have any tips on how to get listed in Yahoo News?
    I’ve been trying for a while but I never seem to get there!
    Appreciate it

  • Brian R Grills says:

    Nice article Kellam. My dealings with ACOE overview on pipeline project in central and northern PA, and eastern Ohio has always been waterways crossings. This is their jurisdictional purview and is what triggers the Section 106 process. ACOE then defines a “buffer” at said crossing within the APE which they will review impacts and make a determination. There is no document that even defines what this “buffer” is and thus regional ACOE offices are left to define it themselves. I have seen ranges from the entire flood plain to 10 feet from the top of bank. One thing is for sure this cultural resource tragedy and the growing press and outrage may actually trigger a reevaluation of the role of ACOE and set forth some actual guidelines.

    • Kellam says:

      Thank Brian. There seems to be some interesting issues with the Army Corps version of Section 106. The recent Society for American Archaeology statement on DAPL (I’ll post that on the MAPA Facebook page shortly, though you probably have access to it already) highlights the fact that they have been following a slightly different set of guidelines.

  • Dorma Sahneyah says:

    Thank you, thank you…takes informed individuals to hold governments accountable!

  • Jeffrey Shanks says:

    Kellum, this is a great summation for non-archaeologists. For archaeologists, particularly those that work in regulatory archaeology, there is another important element to this that needs to be highlighted, and that’s the Corps’s use of Nationwide Permit 12 (NWP 12) to issue these permits. This is a fastracking process that was reissued in 2012 via Executive Order to help speed up the compliance process for utility and pipeline construction. This is the authority that allowed the Corps to segment the project into 206 separate small undertakings with 209 separate small APEs.

    General Condition 20 directs how NWP 12 applies to the NHPA. Essentially it directs the permittee (the utility or oil company) to issue a Pre-Construction Notice (PCN) to the Corps district engineer when there is a potential for adverse effects to historic properties. At that point the Corps decides whether or not to begin the 106 process. As long as the permittee does not think there is a potential problem they can proceed with the construction — they are basically on the honor system!

    In this case, the permittee issued 209 separate PCNs for only the water crossings, divided up among three different Corps engineers. The 106 process was technically carried out 209 times separately (and according to the ACHP, half-heartedly). An EA was done on those and a FONSI issued, but you can see why the Advisory Council took issue with this. It completely subverts the standard four-step process of section 106, and allows the oil or utility company to determine when 106 should take place, not the lead agency. If cultural resources do end up getting damaged, it allows the Corps to cya, and throw the permittee under the bus. saying that they were responsible for issuing a PCN and they didn’t do it.

    This scenario is happening in Florida right now with a utility company that dragged an underwater cable through a civil war shipwreck that is a national historic landmark. A simple email to the SHPO could have prevented it, but they proceeded with the work without any cultural clearance based on the NWP 12 issued permit from the Corps.

    Since 2012, this has become SOP for the Corps on these types of projects, using NWP 12 to allow projects to move ahead without proper 106 compliance. Now that the Obama administration is asking for comment to reassess the permitting process, the CRM community needs to focus on NWP 12 as the real root of the problem. It is a serious loophole that directly conflicts with the NHPA and has to be amended at the very least. This is where we need to target our efforts.

    • Jeffrey – can you share where this happened in Florida? Right now we are fighting a similar issue with the Sabal Trail Pipeline that is cutting through Alabama, Georgia and Florida — at it’s head, it is desecrating the traditional ceremonial Hillabee grounds in Alabama. They have destroyed a culturally sensitive area and begun construction of a compressor station. One of our Tribal member’s here in Florida (Levy County) has been threatened with seizure of his property and the pipeline is cutting through a family memorial garden with the remains of 5 Tribal members – 4 of which were US servicemen. We are posturing for a protest/protection here and across three States….we are gathering support. #stopsabaltrail

    • laurie fisher says:

      I wondered if some type of PA was involved!

    • Kellam says:

      Jeffrey, thanks very much for the clarification on Nationwide Permit 12. This is a serious issue that only recently came onto my radar screen. It also highlights the fact that subsequent agency-specific alteration of procedures, either through programmatic agreements or memoranda of agreement, will often alter the established process for cultural resources.

      • Doug Mackey says:

        I am surprised FERC is not involved in reviewing this type of project as well. Any idea if they are? In my time at the NYSHPO we worked on many pipelines where they were the primary Fed agency. Contrary to a previous comment FERC was responsible for construction as well as transmission due to the “if not but for” effect – if not but for the transmission of the oil, the pipeline would not need to be constructed. This is the same reasoning that should make ACOE responsible for the entire pipeline rout, not just those sections that cross waterways.

  • Mary Wade says:

    Thank you for breaking it down by sections, you’ve explained a lot and I hope people can be more understanding of how the native people have come to lose so much and it all started with the 1899 act. You forgot to mention, when each treaty was done, that these acts where included in them and they were signed, whether the natives had no choice. You say the 1899 is a bunch of jargon and legalese, and it is to much for you to read. These leaders had no idea how to read or even understand English and signed with an X, and lost all their power to any kind of descent life, and even today with some kind of understanding, try to stand up to the system. The big problem is that there are so many different offices, that you have to file paperwork to each one and wait for some kind of response, it’s totally ridiculous! But I am glad you figured things out, because that’s what this government wants or does it?

    • Kellam says:

      You are correct that the opacity of many of these documents can be a significant problem for people understanding the procedure.

      A further issue I hope to explore in future posts (even if only briefly) is the fact that the boundaries of tribal land have changed over time as a result of some treaties being honored and others ignored. As I understand it, there are currently some major questions about what qualifies as “Tribal Land” in the North Dakota case.

  • Jeanne Clark says:

    If water is the sacred font of life, then polluting water is an affront to life itself. Thank you for your excellent article!

  • Lisa Kelly says:

    I’ve very much enjoyed this and your previous post; looking forward to reading more from you!

  • Kathleen von Jena says:

    Excellent job! One question, where does the SHPO stand on all this? Have they issued any statement on their role? Is there any legal recourse pending?

    • Kellam says:

      Kathleen, I am afraid I do not know. If you happen to find out, I’d be curious. If I find out, I will try to post any information I can.

  • Michael Melius says:

    The author observes that the Corps of Engineers may have “screwed up” in its consultation with tribes. As someone who’s involved with Missouri River issues for conservation reasons, I pay attention to the Corps, I’m no great fan of them but I do think they have been doing a better job of tribal consultation in recent years. So this news that they overlooked consultation on such a big project surprises me, esp. since the federal judge who ruled on the case on Sept. 9 wrote that the Corps had made many attempts at consultation, with little response from the Standing Rock tribe.
    Also, does the Corps really have responsibility for historic properties along the ENTIRE length of the pipeline, even though at most a couple miles pass under Corps’ land on Oahe?

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  • Russell J Redner says:

    Ok liability to DAPL, after garnering the exact lcoation through court hearings s onething that is liable, but secondarily, these sites are no different than a white townships cementary. if the Standing Rock People went into Bismarck and dug up the burial sites at the cemnetary, do you think tnat would be a liability? The fact that not only that issue but that these burial asites are significant on both arceholigcal and spiritual lines makes this no different than , if, somebody dug up a burial remains in the Vatican lets say, do yu think that woud be liability there? But also what makes this a federal level crime issue is the intent and the sacredness of these sites, willful with knowledge is premeditation.

  • Robert Flemington says:

    Hi Kellam, I worked on this controversial project for 12 days, and had to leave after I received a call that my younger brother had passed away..I did not know much about it, and was on the opposite reach of the pipeline in Illinois, yet now I know a great deal more, and don’t believe I want anything further do to with it as it is shady to say the least in my view…

  • Roger Rowe says:

    Great article but you seem to place a lot of blame on The Army Corps of Engineers. Don’t the pipeline company need to share some of the blame? I would assume there were a number of contracting agencies involved involved with the required archaeological surveys. What is their share of the blame here? I assume the submitted reports were properly reviewed.

  • Mike says:

    Most, but not all, pipeline companies are only going to do what is required of them by the regulatory agencies dependent on risk assessments. Therefore, the way the USACE defines undertakings and allows self-verification under Nationwide 12 defines how the cultural resource studies are done and is why USACE policies are central to the current discussion. It is also the USACE who is primarily responsible for tribal consultation as it is government to government.

    The U.S. Fish and Wildlife Service seems to fly even further under the radar. In my understanding of Section 106 there should be consultation with SHPO on all projects associated with the Endangered Species Act as there are permits associated with those projects. USFWS uses self-verification that no historic properties are affected and it comes down to the risk companies find acceptable as no SHPO coordination is undertaken.

    Many reports are not necessarily properly reviewed. With the NW12 self-verification process, the cultural resource reports are rarely submitted to the USACE and SHPO, unless a PCN is triggered, and most pipeline companies are very good at avoiding PCNs. SHPOs do not like this, but are relatively powerless to do anything but send letters to the USACE environmental project managers voicing their displeasure.

  • Rob says:

    Perhaps the “water protectors” and other names is sending a message people dont identify with…try americans opposing potentially harmful pipeline..

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