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?